Prisons: Education
	 — 
	Question

Lord Ramsbotham: To ask Her Majesty's Government how education in prisons will be funded after the Learning and Skills Councils are abolished in April.

Lord Young of Norwood Green: My Lords, this Government will continue to fund learning and skills provision in prisons from April onwards through the Skills Funding Agency. For those in youth detention, the Government will fund education through the Young People's Learning Agency from April, and from September this will be funded through local authorities with funds allocated to them by the Young People's Learning Agency.

Lord Ramsbotham: My Lords, I thank the Minister for that reply, which was rather what I feared. Only in the past three years has education in prisons come together under one authority, the Learning and Skills Council, but that is now to be abolished and the responsibility is to be split between two organisations. Who will be responsible for telling the YPLA and the SFA what they have to fund so that provision is consistent for prisoners of the same type wherever they happen to be held in the United Kingdom? Who will lay down who does what on a split-site young offender establishment, which has juveniles who will be under the YPLA, and subsequently local authorities, and young offenders under the SFA? Who will control that?

Lord Young of Norwood Green: My Lords, as the noble Lord, Lord Ramsbotham, knows, after rather extensive discussions on those issues during the passage of the Apprenticeships, Skills, Children and Learning Bill, there is a transition process from the Learning and Skills Council to the Young People's Learning Agency and the Skills Funding Agency. It is done on an age criterion. We believe that that will be a more appropriate system for providing education for young people in custody, which is one of the principal concerns. The YPLA will deal with those up to the age of 18 and the Skills Funding Agency from 18 onwards. The prison authorities will be notified accordingly. An important point is that spending on education for young people in custody has increased since April 2000 more than sevenfold.

Baroness Garden of Frognal: My Lords, education in prison is a proven pathway to reducing reoffending. Given that two-thirds of prison education is provided by further education, what measures are the Government taking to ensure that changes in college funding do not impose additional disadvantage on this most vulnerable group of learners?

Lord Young of Norwood Green: I thank the noble Baroness for her question. We will reply in detail in writing. We do not expect them to be disadvantaged. Educational provision for offenders has risen threefold from £57 million in 2001-02 to more than £175 million in 2009-10. We are not expecting any impact in that respect. I will give a more detailed reply in writing in relation to that point.

Baroness Trumpington: Does the Minister agree that it is not only young people's education that one should worry about? It is the mature person who can neither read nor write and therefore has the utmost difficulty ever getting a job, which starts him on the road downhill. I hope the Minister agrees with me that education all round in prison is vital.

Lord Young of Norwood Green: I agree with the noble Baroness about education all round being of prime importance. For the over-18s, the Skills Funding Agency will continue to fund a full range of courses from below level 2 through to level 4. We know from reoffending rates that those who receive education and employment help are least likely to reoffend.

Baroness Massey of Darwen: My Lords, is my noble friend aware that health services are now delivered in prisons by primary care trusts? Can he explain what the problem is with having local authorities deliver a consistent education service to prisoners?

Lord Young of Norwood Green: My Lords, we do not see a problem with local authorities delivering an education service to prisoners. We laid down specific safeguards in the Apprenticeships, Skills, Children and Learning Bill. They are best placed to provide education. We believe they will have an incentive to ensure that young people, for example, are delivered the education they need while they are in offender establishments.

Baroness Howe of Idlicote: How does the Minister account for the fact that only one-third of prison education managers regularly receive prisoners' records following transfer? How can education that is aimed at improving prisoners' chances of getting jobs upon release be effective with such a lack of information on their needs?

Lord Young of Norwood Green: My Lords, before I answer the question, I am sure the House will join me in congratulating the noble Baroness on her birthday today. I am sure she is merely a smidgeon over 21, like me. We currently have a system for adults that has learner plans following prisoners. We think that is a good system, and it is gradually being put on an electronic database. In relation to young people, education authorities have a responsibility, which we defined in the Apprenticeships, Skills, Children and Learning Bill, to make sure that learning records follow young offenders around.

The Lord Bishop of Liverpool: My Lords, has the Minister made any assessment of the impact of these new education arrangements on IPP prisoners who have served their term but are still in prison because there are already insufficient educational courses available to them?

Lord Young of Norwood Green: That is beyond the scope of the answers I have here. I will write to the right reverend Prelate on this matter.

Lord Acton: My noble friend gave figures on how much money was put into young people's education in prison. From his answer to the noble Baroness, Lady Trumpington, I was not clear how much money is put into adult prisoner education.

Lord Young of Norwood Green: Our investment in education in prison for offenders has risen threefold from £57 million in 2001-02 to more than £175 million in 2009-10. Since April 2000, spending on education for young people in custody has increased more than sevenfold.

The Earl of Listowel: Does the Minister acknowledge the important role that prison officers play in the education of young offenders?

Noble Lords: Order!

Lord Hunt of Kings Heath: I think the sense of the House is that it is time to move on to the next Question.

Kazakhstan: OSCE
	 — 
	Question

Viscount Waverley: To ask Her Majesty's Government what are their expectations for the 2010 Kazakhstan chairmanship of the Organisation for Security and Co-operation in Europe.

Viscount Waverley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chair of the British-Kazakhstan APPG.

Baroness Kinnock of Holyhead: My Lords, we will work with Kazakhstan to deliver progress on the key issues facing the OSCE. These include the discussion on the future of European security, the protracted conflicts in Moldova and the Caucasus, and the protection and promotion of democratic institutions.
	We welcome President Nazarbayev's pledge on 14 January to "pursue further political liberalisation". We will continue to support Kazakhstan's efforts towards meeting its OSCE commitments and the challenges that it faces as chair.

Viscount Waverley: This could be the important East-West landbridge year for the OSCE, the chairmanship and Kazakh internal best practice. Are the differing Eurasia security concepts initiated under the Corfu process being advanced satisfactorily? In addition to keeping that process alive, has not the Helsinki Committee on Human Rights also now recommended, with official US support, the merits of an end-of-term summit last held in Istanbul in 1999, which would allow leaders to adopt agreed priorities?

Baroness Kinnock of Holyhead: I thank the noble Lord and pay tribute to the work that he undertakes in the all-party group which fosters links between the UK and countries in central Asia. The Corfu process was set up to discuss the security concerns of all members of the Euro-Atlantic and Eurasian space and across all three dimensions of our security. At the OSCE ministerial meeting in December, all OSCE countries agreed that the Corfu process had already improved the quality and contributed to revitalisation of political dialogue. We are committed to supporting and continuing that dialogue.
	On the second issue, I would point out that the OSCE is not just about human rights; it has a busy agenda, including European security issues, conflict prevention, human rights democratisation and security impact of energy and environmental issues. Progress discussions will be relevant to our consideration of a possible summit.

Lord Anderson of Swansea: My Lords, Kazakhstan has made some welcome moves away from autocracy but my noble friend will recall that at the Madrid conference in November 2007, to allay fears about the human rights record, Kazakhstan made a number of specific commitments. Are the Government satisfied on the expectations of compliance with those commitments during the one-year term of office?

Baroness Kinnock of Holyhead: I agree that Kazakhstan's performance on human rights since independence compares favourably with some of its neighbours. Kazakhstan has taken some important steps forward with its reform agenda, but certainly we would say that more progress needs to be made, which was acknowledged by the Kazakh Government, on individual cases, on human rights, on media restrictions, internet law, legislation and religion. We expect all those issues to be addressed.

Lord Howell of Guildford: While it is perfectly proper to put pressure on Kazakhstan to accelerate its democratic development, does the Minister accept that this country is an important part of the Afghanistan jigsaw and the international energy security jigsaw? Will she assure us that aside from any links on our foreign policy through the European Union we will develop strong bilateral connections with Kazakhstan over the coming years to ensure that our foreign policy interests are promoted effectively?

Baroness Kinnock of Holyhead: I thank the noble Lord for the important points he makes and his acknowledgement that Kazakhstan has made public commitments to preserve the mandate of the OSCE Office for Democratic Institutions. We support Kazakhstan's focus on the protracted conflicts in Moldova and the Caucuses. We would like to see more progress from Kazakhstan on arms control under the Kazakh chairmanship and the treaty on conventional forces in Europe. We welcome Kazakhstan's focus on Afghanistan, to which the noble Lord referred, and the engagement in central Asia is essential to the stabilisation of Afghanistan.

Lord Dykes: Perhaps I may press the Minister further on the answer given to the noble Lord, Lord Anderson. The special reputation of the OSCE is likely to be tarnished if the Kazak Government do not make more progress on democracy, human rights and freedom of speech. There is still a lot to be done. Why is the Minister so confident that the Kazak Government are dealing properly with these matters?

Baroness Kinnock of Holyhead: I do not think that I was being as positive as perhaps the noble Lord thought. I acknowledged clearly that, although there has been some progress, a great deal still needs to be done. We are working with the Kazaks bilaterally and with our EU partners on a wide range of human rights issues, including that controversial legislation on religion and the internet, as well as individual cases, such as Yesergepov and Zhovtis who have had very flawed legal processes to face. The Kazaks participate in human rights dialogue under the EU central Asia strategy, and the UK and the EU contribute their views. But we want them to co-operate more effectively and consistently on all these matters.

Baroness Symons of Vernham Dean: My Lords, given what my noble friend has said about general support and how much more needs to be done, has any consideration been given to forming a group of the friends of the chair for Kazakhstan during the period of its chairmanship and, if no such thought has been had, will consideration be given to that point?

Baroness Kinnock of Holyhead: I thank the noble Baroness for her intervention. I agree that friends of various countries and organisations have been effective in the past. I am not aware of any initiative of the kind of which she just spoke, but I will investigate whether it has some potential.

Lord Kilclooney: My Lords, I notice that the non-compliance by Armenia of the various United Nations resolutions relating to its occupation of Nagorno Karabakh and several provinces of Azerbaijan were not listed as one of the priorities of the OSCE. As the non-resolution of this problem could lead to further violence, will the Minister bring this matter to the attention of Kazakhstan and have it on the agenda during its presidency of the OSCE?

Baroness Kinnock of Holyhead: I thank the noble Lord for that question. I, too, can confirm that this is not a priority listed on the agenda. However, I will look into whether it can be included.

Airports: Heathrow
	 — 
	Question

Lord Trefgarne: To ask Her Majesty's Government what is their policy with regard to a third runway at Heathrow.

Lord Adonis: My Lords, the Government's policy with regard to a third runway at Heathrow remains as announced to the House in January last year. We support a third runway at Heathrow, subject to conditions, including an initial limit on the overall number of flights. It is for the airport operator, the BAA, to bring forward a planning application in the light of this announcement.

Lord Trefgarne: My Lords, I am grateful to the Secretary of State for that reply. Is he satisfied that the consultations conducted by the BAA are being properly conducted? They have been widely criticised. In the light of things that have happened since the Government made their announcement in this matter, is he satisfied that their original decision is still correct?

Lord Adonis: My Lords, I am satisfied with the consultations that have been conducted. If the noble Lord wishes to draw any particular matters to my attention, I would be glad to look at them, but I am not aware of any which give me cause for concern. The decision to allow a planning application to come forward for a third runway, subject to conditions being met, has stood the test of time, despite two years of recession. Heathrow is still running at near 100 per cent capacity, despite the downturn in business at other airports. It is our main international hub airport. The lifeblood of our national economy depends on it. This Government will not betray the national interest by refusing to take a decision which is manifestly in the best interests of the country.

Lord Harris of Haringey: My Lords, is my noble friend aware that the Mayor of London has taken up a position opposing a third runway at Heathrow on the grounds of noise and pollution, but in favour of building a new airport floating in the middle of the Thames to the east of London? Will my noble friend comment on whether that policy position is consistent and in the national interest?

Lord Adonis: My Lords, the proposal for an estuary airport has been widely dismissed by sensible commentators, including most of the official spokespeople of the Conservative Party. The official Tory spokesperson says that Boris takes an independent line as Mayor of London. I thought he was a Conservative, but clearly this is not the case for the purposes of this and so many other decisions. Paul Carter, the leader of Kent County Council, the second largest Conservative-controlled authority in the country, says:
	"There is a growing consensus that the estuary airport is undeliverable, unaffordable and unnecessary".
	I could not put it better myself.

Baroness Hanham: My Lords, can I ask the Secretary of State about the status of the UK's application to the European Commission for derogation of the nitrogen dioxide and particulate matter 10 limits around Heathrow? Will giving the go-ahead to a third runway at Heathrow not make it impossible to improve the air quality sufficiently to avoid this country being penalised?

Lord Adonis: My Lords, we are in discussions with the European Commission on this very point and I am confident that we will reach a satisfactory position. In respect of nitrogen dioxide, combined aircraft and road-vehicle nitrogen dioxide emissions around Heathrow are expected to halve by 2030 compared with 2002, even with a fully utilised third runway.

Lord Bradshaw: The Minister must have contact with a number of companies and organisations concerned with Heathrow. Are those organisations planning for everything to stop if his party loses the election, or do they think to themselves that the present expedient decision of the Conservative Party to vote against the third runway will be reversed once the election comes?

Lord Adonis: My Lords, I have had no discussions with organisations about the possibility of us losing the general election, so remote a possibility that is.

Lord Grocott: Given my noble friend's commendable enthusiasm for a high-speed rail network, has he made any estimate of what effect a fully developed high-speed rail network would have on demand at Heathrow? Although I admit in advance that this is slightly on the margin of the original Question, can he give any indication as to when he is going to make his announcement on the high-speed rail network?

Lord Adonis: My Lords, I anticipate that we will publish a White Paper on high-speed rail in March. In respect of the potential for high-speed rail to substitute for a third runway, only a very small proportion of Heathrow traffic goes to domestic destinations that would be served by high-speed rail. The great growth of demand at Heathrow is for long-haul flights and therefore the best interests of this country are served by having both high-speed rail and a third runway. In life one does not always have to choose between desirable objectives.

Lord Clinton-Davis: I declare my interest as president of BALPA. Would not British aviation be dealt a mortal blow if we were unable to proceed with a third runway at Heathrow? Is there any possibility that Birmingham Airport can provide a viable alternative? My own view is that it cannot. Is it not apparent, also, that the next generation of aircraft will have to take climate change very seriously into account, whatever decision is reached with regard to airports?

Lord Adonis: My Lords, I agree with all the points which my noble friend has made. When the Government took their decision in respect of the third runway, they asked the Committee on Climate Change, chaired by the noble Lord, Lord Turner, to look at the capacity of aviation to reduce its emissions in 2050 below those pertaining in 2005 and the policies that would be needed to meet that objective. The committee reported recently as follows:
	"The Report finds that there is potential for aviation demand to increase while still meeting the Government's target-in the most likely scenario, a 60% increase in demand is allowed. Higher increases might be possible if technological progress and the development of sustainable biofuels were more rapid than currently envisaged".
	It is perfectly possible for us to increase aviation in this country while, over the medium to long term, reducing carbon emissions.

Social Tourism
	 — 
	Question

Baroness Rendell of Babergh: To ask Her Majesty's Government what steps they are taking to promote social tourism.

Lord Davies of Oldham: My Lords, the Government understand the value of access to leisure and tourism activities for all. By providing support for those who need it most, we are committed to a society where everyone can engage in leisure activities, including holidays, if they wish. A good example is our policy of free admission to many national museums and galleries, resulting in an increase by 124 per cent in the number of visits to museums offering free access.

Baroness Rendell of Babergh: My Lords, I thank my noble friend for his Answer. Is he aware that France, Spain and Italy have integrated social tourism into their social welfare policy, providing holidays for people on low income who do not have a holiday? Could not the United Kingdom do something similar?

Lord Davies of Oldham: My Lords, we have taken rather a different view on the question of improving life for the less well off in our society to that taken by France, Italy and Spain. We prefer to ensure that increased resources are available for families to make their choices. We are conscious of the fact that France, in particular, puts a very great emphasis on holidays, even regarding them as a human right.

Baroness Gardner of Parkes: My Lords, could the Minister define social tourism for us? We have a little feeling of it from his replies, but it would be good to know exactly what is meant.

Lord Davies of Oldham: The concept behind social tourism is to ensure that those in society who are less well off get the opportunity to go on holiday. There are one or two organisations that provide very inexpensive holidays for the less well off. That is the concept of social tourism, and the Government are of course sympathetic to it. They even give £10 million in grants to an organisation concerned with holidays for the disabled. That is the concept.

Lord Lee of Trafford: Would the Minister consider encouraging the Government to set up a mechanism so that those who do not need or want the winter fuel allowance can divert that money to a charity of their choice, such as the Family Holiday Association, which provides holidays for the disadvantaged, to which the noble Baroness referred?

Lord Davies of Oldham: My Lords, the Family Holiday Association is certainly a deserving institution in these terms. Of course, people are encouraged to give support to a charity with that intent, but it would destroy the concept of charitable giving if the Government made it mandatory.

Baroness Massey of Darwen: My Lords, my noble friend will be aware that a Child Poverty Bill is going through your Lordships' House at the moment. Is there any evidence that providing breaks to families who live in poverty helps to boost their morale, so that they are enabled to climb out of poverty?

Lord Davies of Oldham: My Lords, there is some evidence of that. Of course, the French put a greater emphasis on the advantages of holidays. There is no doubt that a break does boost morale. I apologise to the House, because I said that the grant to Tourism for All, which gives holidays to the disabled, was £10 million. I meant £10,000. We want to encourage this. We have no doubt at all that it is advantageous to families who are less well off, and there is evidence that people benefit from holidays.

Lord Brooke of Sutton Mandeville: My Lords, is the Minister aware, in the unexpected absence of the noble Lord, Lord Pearson of Rannoch, that the European Parliament is considering amending the scheme under which almost 100 of their highest paid officials have their children taken on holiday at half price, so that it goes to low-paid officials instead?

Lord Davies of Oldham: My Lords, I never thought that the House would miss the noble Lord, Lord Pearson of Rannoch. The noble Lord has stepped into the breach. We can all draw some satisfaction from the point that he makes, but I am talking here about a benign concept of holidays for the less well off and the disabled, rather than holidays for those who may be regarded as somewhat overprivileged.

Lord Judd: In a highly interdependent global community, does my noble friend agree that just as foreign languages are imperative in preparing our young to meet the challenges of that international community, it is essential to give all possible support to youngsters during their education to take opportunities to travel abroad? Can we ensure that this does not become a prerogative of the more affluent members of society?

Lord Davies of Oldham: My Lords, my noble friend has a good point-that is why we are pleased that in the education system schools are concerned with these opportunities for holidays abroad. However, this Question focuses upon families who are less well off: the concept behind it is that family holidays should be supported and provided for. I indicate how sympathetic the Government are to that concept, without having an excessive contribution of public funds towards it.

Baroness Howarth of Breckland: My Lords, does the Minister agree that under the Every Child Matters agenda the Government are looking to give equal opportunity to all children? A recent report, put together by the children and families courts service, has found that one of the greatest worries for children on the separation of their parents is finance. It is not only a question of the emotional issues-finance leads to emotional issues. One of the other issues is the consequence of poor finance, which means children lose all the benefits they have known as a family. Holidays are particularly important when you are a young person going back to school after the summer holidays and sharing with others what you have experienced.

Lord Davies of Oldham: My Lords, I am grateful for that point from the noble Baroness. The Government's drive to reduce the number of children in poverty-reduced by 500,000 over a number of years-reflects our concern that these children should not suffer too great a disadvantage. The noble Baroness is absolutely right: children who live in families where the home is broken and the parents have separated are often to be found in that category.

Arrangement of Business
	 — 
	Announcement

Lord Bassam of Brighton: My Lords, at a convenient point after 4.30 pm, my noble friend the Leader of the House will, with the leave of the House, repeat a Statement entitled "Devolution in Northern Ireland".

Infrastructure Planning (Decisions) Regulations 2010

Link to the Grand Committee Debate

Motion to Approve

Moved By Lord McKenzie of Luton
	That the draft regulations laid before the House on 5 January be approved.
	Relevant document: 4th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 1 February.
	Motion agreed.

Cluster Munitions (Prohibitions) Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments

Third Reading

A privilege amendment was made.
	Motion
	 Moved by Baroness Kinnock of Holyhead
	That the Bill do now pass.

Baroness Northover: My Lords, we on these Benches are absolutely delighted that this Bill has now been agreed in this House; we hope that it will speed its way through the other place. A number of noble Lords in this House have played a key role in getting to this point-not least the noble Lords, Lord Dubs and Lord Elton, and also my late lamented friend Lord Garden.
	Cluster bombs are an appalling danger to civilians. They have no place in modern warfare and should be put beyond use. I am very glad that we have been able to play our part in ensuring that the UK can take a leading role in this regard.

Lord Howell of Guildford: My Lords, from this side I endorse the remarks already made. We think this is an excellent Bill, and we are glad that it is about to pass.

Lord Dubs: My Lords, I am delighted that we have got this far with the Bill. I hope the Commons will get a move on and pass it into law. There are children and people the world over who will be safer now as a result of this ban. It is a good news day for all of us.

Baroness Kinnock of Holyhead: My Lords, I thank noble Lords for their comments. As the noble Lord, Lord Dubs, has said, we hope very much that this cluster munitions legislation will move swiftly through the Commons and that we will see the results it will bring for the many thousands of people across the world who will be safer because of it.
	Bill passed and sent to the Commons.

Bribery Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments

Third Reading

Moved by Lord Bach
	That the Bill be now read a third time.

Baroness Royall of Blaisdon: My Lords, before the House begins the Third Reading of the Bribery Bill, it may be helpful for me to say a few words about Third Reading amendments. The House has agreed a procedure for addressing amendments which, in the view of the Public Bill Office, fall outside the guidance in the Companion and the rules set by the Procedure Committee. In line with that procedure, the Public Bill Office advised the usual channels on Friday that some of the amendments on the Marshalled List for Third Reading today fall outside that guidance. On the basis of that advice, the usual channels have agreed to recommend to the House that Amendments 1, 2 and 5, in the names of the noble Lords, Lord Thomas of Gresford and Lord Goodhart, should not be moved. As ever, this is ultimately a matter for the House as a whole to decide.
	Clause 1 : Offences of bribing another person
	Amendments 1 and 2 not moved.
	Clause 10 : Consent to prosecution
	Amendment 3
	 Moved by Lord Pannick
	3: Clause 10, page 7, line 2, at end insert-
	"(6) Consent may not be given for the institution of proceedings under subsection (1) or (2) in respect of conduct which was specifically authorised in advance under the hand of-
	(a) the Secretary of State, or
	(b) a senior official, but only if the Secretary of State has expressly and personally authorised the giving of the authorisation and considers the case to be urgent, and a statement of those facts is endorsed on the authorisation.
	(7) An authorisation shall not be given for the purposes of subsection (6) unless the Secretary of State is satisfied that the conduct is necessary for one of the functions stated in section 13(1).
	(8) An authorisation for the purposes of subsection (6) ceases to have effect-
	(a) at the end of the period of 6 months starting with the day on which it was given, if it was given under the hand of the Secretary of State, and
	(b) at the end of one week after the day on which it was given, if it was given under the hand of a senior official.
	(9) Subsection (8) does not apply if the authorisation is renewed under subsection (10) before the day on which it would otherwise cease to have effect.
	(10) The Secretary of State may renew an authorisation for a period of 6 months starting on the day on which it would otherwise cease to have effect if, at any time before that day, the Secretary of State considers it necessary for the authorisation to continue to have effect for the purpose for which it was given.
	(11) Subsection (10) may apply more than once.
	(12) A renewal under subsection (10) must be made under the hand of the Secretary of State.
	(13) The Secretary of State must cancel an authorisation if he is satisfied that an act or omission authorised by virtue of it is no longer necessary for the purpose for which it was given.
	(14) For the purposes of this section, "senior official" has the meaning given by section 81 of the Regulation of Investigatory Powers Act 2000."

Lord Pannick: My Lords, with the agreement of the House and of the noble Lord, Lord Goodlad, perhaps I may move Amendment 3.
	Each of the amendments in this group seeks to improve on the wording of Clause 13, the better to implement the objectives-which I believe are shared across the House-of ensuring that acts of bribery are carried out on behalf of the state only when necessary, and that officers of state are given as much assistance as possible in advance in order to know when it is permissible to carry out such an act. Clause 13 is deficient in relying on a criminal prosecution after the event, with the onus of proof on the defendant as sufficient protection of the public interest.
	I continue to hold the view that I expressed in more detail on Report, which is that it is important for there to be an authorisation procedure for acts of bribery by the state. That is essential to ensure that if acts of bribery are to be carried out by the state, it is done only when truly necessary and to ensure that officers carrying out such acts have proper protection from prosecution. Indeed, without an authorisation procedure, I would be surprised if officers would be willing to conduct acts of bribery and to take the risk of later prosecution. Amendment 3 does not require prior authorisation; it simply recognises that where the Secretary of State gives prior authorisation, a prosecution should not take place thereafter.
	I add that I have put my name to Amendment 6, tabled by the noble and learned Lord, Lord Woolf. I look forward to hearing from the Minister why the Government object to the modest requirement in Amendment 6 to issue guidance simply to ensure that proper records are kept of acts of bribery by the state, or why the Government object to reporting to Parliament in that context, particularly when Amendment 6 expressly recognises the operational needs of the services. The guidance would only require records to be kept,
	"so far as is practical",
	and so far as it does not impede "the proper exercise" of intelligence and Army functions. I therefore hope that, even at this late stage, there will be some movement on this important matter. I beg to move.

Lord Mackay of Clashfern: My Lords, I support this amendment for the reasons that the noble Lord, Lord Pannick, has given. The idea of a prior authorisation is incorporated in the statutes of the security and intelligence services. The authority or precedent of the Protection of Children Act, which the noble Lord previously quoted, refers to an amendment which was introduced into what I think is quite an elderly Act by a children's Act in 2003. This deals only with questions of the possession of pornography and the like for the protection of children. It is a very much simpler issue than the contents of this legislation involve.
	Secondly, I want to mention the very considerable intervention at the last stage by the noble and learned Lord, Lord Archer of Sandwell, who is probably more experienced than any of us in this area, certainly from the point of view of seniority. His was a very serious comment on having this simply as a defence. Therefore, in my view, what he said is best met by the kind of amendment that the noble Lord, Lord Pannick, has moved, which greatly improves the drafting of the Bill.

Lord Foulkes of Cumnock: My Lords, speaking as the Lords member of the Intelligence and Security Committee-I have now also been nominated for the Joint National Security Committee which is to be set up between the two Houses-I am in a very privileged position, as all noble Lords here are aware. We are privy to a great deal of information regarding the operations of the security services. I can therefore speak with the knowledge but, unfortunately, without being able to go into too much detail.
	When I read the proceedings in Committee, I was appalled at the suggestion that Clause 12 should be deleted. As I understand it, we are not now considering that, which I am very pleased about. However, the alternative that has been put forward by the noble Lords, Lord Pannick and Lord Goodlad, is also unacceptable for a number of reasons.
	My understanding is that the first Joint Committee on this corruption Bill ruled out the question of authorisation for a number of reasons. No doubt my noble friend Lady Whitaker and others can confirm that. The most important reason for ruling it out is how impractical it would be. The volume of authorisations would be enormous. I know that some Members who have been Ministers, or Home, Defence or Foreign Secretaries, will understand the huge volume that there would be in relation to authorisation where agents, as part of their duty, have to make payments to contacts to get information which can be vital for national security, the prevention of terrorism and a whole range of other things that are in the national interest. There would be hundreds and thousands of pre-authorisations on a regular basis.
	The Home Secretary and other Secretaries of State already have to deal with authorisations for interception, wire-tapping and a whole range of other things which provide an enormous burden on them. This would be an added burden that is quite unnecessary and intrusive. It is being suggested by lawyers. I think that everyone who has spoken for it, both in Committee and outside it, have been lawyers. Lawyers are generally like MPs and other politicians. When I was an MP, I found that people like you individually but they are not very fond of you collectively. In my constituency I had a lot of support, but collectively we were not very popular. I like lawyers as individuals. I like no one better than the noble and learned Lord, Lord Mackay, who I have known for many years. However, I get a bit worried when they gather together as a herd and push something. The wisdom of this amendment must be questioned-I hope that the House will question it-as it is an unfair, undue and, above all, unnecessary burden to put on Secretaries of State when the system has been operating quite properly and effectively up until now.

Lord Mackay of Clashfern: Before the noble Lord sits down, has he any comment to make on the intervention of the noble and learned Lord, Lord Archer of Sandwell, at the previous stage?

Lord Foulkes of Cumnock: I fully respect my noble and learned friend, who served on the Intelligence and Security Committee with great distinction for a long period. However, I understand that my colleagues on the present committee, who come from all parties, feel the same as I do.

Lord Goodlad: My Lords, I support the noble Lord, Lord Pannick, in his exposition of the reasons why the amendment in our names should commend itself to the House. I want to make three brief points. First, I express the gratitude of members of your Lordships' Select Committee on the Constitution to the noble Lord, Lord Bach, and his ministerial colleagues for their unfailing courtesy in briefing us on the Bill's potential consequences. Secondly, it has been said to me-my noble and learned friend Lord Mackay of Clashfern referred to this-that there is already statutory provision for prior ministerial authorisation of bribery on the part of the armed services and the security services. It has also been said that this is impractical. Both propositions cannot possibly be true. Therefore, the Minister will no doubt wish to say whether there is already statutory provision, as my noble and learned friend says, in which case it ought, clearly, to be in the Bill, or whether prior authorisation is impractical.
	Many government transactions require ministerial authority. One thinks of the millions of transactions involved in social security. We are not here envisaging a very large number of transactions-quite a lot, but not an enormous number. However, the noble Lord, Lord Foulkes, with whom I agree on a surprising number of things, failed to point out that not every transaction falls within the provisions of the Bill. Class authorisations are available to the Secretary of State. It is up to him to decide. Therefore, it is not a matter of authorising hundreds of thousands of transactions; it can, if he or she so judges, be a class action.
	My final point has not been previously deployed. If we are to ask people in our armed services and the security services to continue to engage in acts of bribery on behalf of the state, we must do so because there is no alternative, and we must protect them in other jurisdictions where they may well be prosecuted. We do not know, nor can we know, what other jurisdictions say or are going to say. If they are grabbed in another country and prosecuted, we must give them the protection of being able to say that they have the authorisation of the Government. Therefore, I wholeheartedly endorse what the noble Lord, Lord Pannick, has said. I very much hope that the Minister, with his unfailing courtesy, will address these points.

Baroness Whitaker: My Lords, as not only a non-lawyer but a non-expert, I always thought that the idea of authorisation was unwise. It is very permissive and very broad. Not only do I defer to my noble friend Lord Foulkes's expertise on practicality; if one steps back a bit from the amendments and returns to the Bill as drafted, the result of Clause 13 as now drafted is that there will not be prosecutions by the prosecuting authority unless there is a doubt about the legality of an act by the security services or the Army. It seems to me that that is the right balance.

Lord Thomas of Gresford: My Lords, I think the point that we are all trying to cover is the protection of the security services and the Armed Forces in offering favours or money in order to obtain information or whatever it is that is necessary for them to carry out their role.
	Four ways have been discussed in the proceedings on the Bill. The Government's approach is to have a statutory defence open to members of those services, which is what we see in Clause 12 or Clause 13. Another way would be prior authorisation, which the amendment argues for. A third way, which I have previously argued for, is to allow prosecutorial discretion. The director of the Serious Fraud Office or the Director of Public Prosecutions would have ample discretion to prevent prosecutions of members of their services if it was in the public interest not to prosecute them. I set out a fourth way in my amendment to Clause 1, which is simply to make it not an offence for a member of those services to do those very acts. To my mind, that is a simple, straightforward way of dealing with it, and my first and second amendments were merely redrafting the Government's provisions to make what I regarded as a far more practical way of dealing with the object that we all have in mind.
	I heard the criticism by the noble Lord, Lord Foulkes, of lawyers, and I am not surprised about that. Even he will concede that he does not know-many people do not know-precisely how the courts work in practice. You need to have considerable experience to appreciate that a reverse burden of proof is not a very satisfactory way of proceeding. Indeed, reverse burdens of proof have made a lot of people in the legal profession a lot of money over the years, not only in this country but in Strasbourg. I recall in particular the case of the Attorney-General of Hong Kong v Lee Kwong-kut, which was before the Privy Council here and was concerned with the interpretation of the bill of rights in Hong Kong. I was for one of the parties in that case, and the noble and learned Lord, Lord Woolf, gave the lead judgment, in which he pointed out that putting the legal burden on the defendant is right when, among other instances, the defence depends on facts within the defendant's own knowledge. For example, in Clause 7, there is a statutory defence for a company to prove that it,
	"had in place adequate procedures".
	Why is that satisfactory? Because it is within the company's own knowledge as to what adequate procedures it has and what it can advance.
	My criticism of Clause 13 as it now stands, and the reason why I opposed it and wish to strike it out, was that a person who is in the security services or the Armed Forces cannot possibly have access to the evidence which would be required for him to support such a defence. He would not, as I said on the last occasion, be able to walk into the offices of MI5 and demand to see the papers on which his defence would depend. If he was in the armed services, he would have great difficulty in bringing witnesses from the far reaches of the earth, where the British forces may happen to be and where the offence might have been committed, and obtaining papers the release of which would probably be resisted by the Ministry of Defence. It is impractical.
	I still share the same object as others. I am disappointed that what I regarded as a redrafting has seemed to the usual channels to be in breach of the Third Reading amendments principle. There it is: the Government have tied themselves to the worst of the four courses I put forward. For that reason, we on these Benches will support pre-authorisation, which is a better solution for the particular problem.

Lord Woolf: My Lords, I hope I will be forgiven if I deal with the present amendment at the same time as Amendment 6, to which I have placed my name and which has the support of the same noble Lords as support this one. I repeat the disclosure I made on Report as to my interest.
	I start by explaining why I consider that this provision and the issues we are discussing are of considerable importance. As I understand it, the defence made available in Clause 13 has the effect of the state acknowledging that there will be circumstances where members of the security services, intelligences services and Armed Forces will, in the course of their duties on behalf of the state, commit acts of bribery. This House would agree that there could be circumstances where that is right and proper but this is a significant power to give to the security and other services: the power to bribe without any form of parliamentary scrutiny or other form of prior authorisation.
	We have certain experience in this field. Three Acts deal with the security services and intelligence services and work reasonably well. They require a warrant to authorise acts which would otherwise be unlawful. The systems provided for are the subject of a form of review and scrutiny by an independent person who is normally a retired senior judge. That is done, for example, in relation to telephone tapping. One can see why it is absolutely necessary, even though the situations where telephone tapping has to take place are substantial. I have difficulty understanding why, if it is practical in relation to telephone tapping or the searching of premises, something cannot also be done in this connection. It is important that, whereas the security services and intelligence services now have well-developed methods of keeping appropriate records so that they can be inspected, there is no legislation of which I am aware-I know I will be corrected if I am wrong-dealing with the Armed Forces, who are going to have this power to bribe on behalf of the state.
	It is self-evident that if a new power to bribe is being given by this legislation to the Armed Forces, that could properly be said to be necessary in particular circumstances. We do not say otherwise; but it does need safeguards. One way of providing them, particularly in relation to the officers of the various services to which I have referred, was suggested by the amendment referred to by the noble Lord, Lord Pannick. It creates an improvement. However, in drafting Amendment 6, on which I am primarily addressing your Lordships, I listened to what was said by the noble Lord, Lord Bach-I endorse the remarks made by the noble Lord, Lord Goodlad, about the Minister's courtesy-and treated it with the seriousness that it obviously deserved. I sought to find a way in which there could be a form of supervision, admittedly not ideal, that would provide protection in regard to both matters to which I have referred; first, the need for there to be a system in place to indicate the scale of bribery that is occurring, and the circumstances in which it is occurring; and secondly, to provide a flexibility that would not and could not interfere with the security services in the way indicated by the noble Lord, Lord Foulkes.

Lord Foulkes of Cumnock: I thank the noble and learned Lord and assure him that the Intelligence and Security Committee has the power not just to examine the accounts of three services, but to ask detailed questions about them. In my experience over the past three years, the three services have given detailed information along the lines that the noble and learned Lord is suggesting. There is scrutiny by a committee of Members of both Houses of Parliament of the accounts generally and of the details of those accounts.

Lord Woolf: I am grateful to the noble Lord, Lord Foulkes, for indicating that, but my understanding of the situation is that, in regard to bribery, the act of scrutiny does not take place now. Obviously it should do. I do not know whether the noble Lord, Lord Foulkes, has knowledge of whether there is any form of scrutiny at the present time. Certainly, if there is a form of scrutiny, that is beneficial. However, the form of scrutiny that my amendment, supported by other noble Lords, recommends to the House is one that will end up in an annual report to the House. When it comes to bribery on behalf of the state, the rule of law requires no less than that there should at least be regular reports to the House about what is happening on the state's behalf in relation to bribery. Resorting to bribery is a very corrosive exercise, and if it is going to be resorted to, we need care and protection of the sort that I have indicated.
	I ask the noble Lord, Lord Bach, if he does not feel that he can accept the amendment, to tell the House why it is not practical from the point of view of the services to which it refers. It requires the Secretary of State to determine what guidance should be given on the nature of the scrutiny. The Secretary of State can certainly consult and be guided by the services in drawing up the guidance. It does require, however, that the guidance should in its turn require that a record, so far as is practicable without impeding the proper exercise of the functions referred to in Clause 13, be made before the act of bribery is carried out; to state when and by whom it was carried out and to give such particulars as are sufficient to identify the act of bribery. I should like to endorse what the noble Lord, Lord Thomas of Gresford, has said about the difficulty of the person who is to be the subject of an offence. The new clause gives that person the right to make a request and to receive a copy of the record which relates to him,
	"unless the Secretary of State considers that such disclosure would be contrary to the public interest, in which event such disclosure shall only take place if the trial judge directs that it should occur",
	thus taking advantage of the well known procedure of the trial judge being put in the position of having to safeguard the public interest.
	I provided the noble Lord, Lord Bach, with a copy of the amendment. I am sorry that he has not had the time to consider it but I would like him to have done so because of the timescale to which we have been working. I suggest, however, that it was difficult to see why this is not a method of providing some realistic protection both to the state and to those who have to engage in the nefarious world where bribery is required to be carried out in circumstances where no offence will be committed.

The Earl of Onslow: My Lords, apart from the fact that the four people who have put their names to this amendment could be described in modern terms as some of the most grown up in the House, I should like to draw a small point to your Lordships' attention. As your Lordships know, there is an expression which says you cannot buy an Afghan, you can only rent him. As far as I can gather from reading the newspapers, British and American policy is to rent Afghans on a large scale. Surely, that is the sort of policy which needs even more serious oversight and consequently I seriously support the four great grown-ups who have put their names to this amendment.

Lord Lyell of Markyate: My Lords, I should like very succinctly to support these amendments and the points that have been made. I start by endorsing the point of my noble friend Lord Goodlad that the noble Lord, Lord Bach, has always been unfailingly courteous. I am sure he will give this careful consideration and we shall listen most carefully to what he has to say.
	The dangers and corrosive effects of bribery have been perfectly put by the noble and learned Lord, Lord Woolf. It seems to me that there has to be some system of supervision and control by the Secretary of State and that there is an enormously strong case for the officers, whether of the Armed Forces or the security services, having the benefit of an authorisation procedure which will give them confidence that what they do will not lead to prosecution. There is a great deal of sense in the proposals that the Government should issue guidance. They will issue guidance in a great many areas, whether or not they are leaving matters to the discretion of the prosecuting authorities.
	The principal argument that seems to be made against these proposals is that there are so many authorisations that it is not practicable to give them. They can, however, be broken down into classes. The fact that you have to break some down into classes and the fact that some have to done at very short notice and under some general instruction is no argument, in my view, against a system of control. The system of control may not be perfect because a perfect system would completely upset the practical needs of the services. However, that is not an argument for no system of control. Indeed, the committee on which the noble Lord, Lord Foulkes, sits-he has great knowledge in this matter-calls for and receives a great many detailed records, and I cannot believe other than that careful records are kept of bribes that are made in all these circumstances and of the amounts that are spent.

Lord Foulkes of Cumnock: Not only do we examine the accounts very carefully and ask a lot of questions, but now, under this Government, we also provide an annual report both to the House of Commons and to this House that is debated. I introduced it in the Grand Committee in the Moses Room just a few months ago, and another one is coming up. That provides an opportunity for individual Members of the House to ask questions. On the previous occasion, no one asked about bribery.

Lord Lyell of Markyate: The noble Lord's remarks are pertinent, but I am sure he will instantly recognise that they cut both ways. If the necessary records are to some extent already being kept, it is not asking too much for the records that are required by the amendments to be kept. We as a country will hold our heads higher for being seen to have a system of control, even given what I entirely accept are the practical needs of the armed and security services to bribe, often on many occasions. Having supervision and control would raise our status, which is quite rightly very much part of the Government's objective in the Bill. Keeping these records would not be an excessive requirement, because most of them are already kept. I very much hope that the Government will respond favourably to the thrust of the amendments and will put into place some such system, if not precisely this one.

Viscount Colville of Culross: My Lords, I have an amendment in this group that deals with the matter in the opposite way from the Government. I hope that there will be an answer to the point, to which the noble and learned Lord, Lord Mackay, has already adverted and which the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Thomas of Gresford, rehearsed on Report, about how the defence will work.
	There are various methods of dealing with the problem about which everyone has been talking and obviously understands very well. The Government have decided on the method of a defence which the House has been told by people who are much more eminent in the criminal law than I am simply will not work, because the material will not be available to the defendant-or to the court, let alone to the jury-for him to establish the defence on which the Government are dependent. The noble Lord, Lord Bach, has therefore had notice of this, and I hope that he will explain exactly how it is intended to work. It will be no defence if the result is either that the case cannot be prosecuted because such sensitive material is involved that it cannot be presented to a court, or that it cannot be defended because the defendant has no access to exactly that sensitive material and therefore cannot establish the defence that he has been given by the statute. This was the concern that moved me, so I reversed the whole thing in my amendment and put the burden on the prosecution instead. I hope that the noble Lord will deal with this point.

Baroness Hanham: My Lords, at this very late stage of the Bill, I hope that the House will forgive me if I intervene on behalf of my noble friend Lord Henley. Indeed, it is appropriate that the shadow spokesman on transport is standing in his place because he is stuck in a broken-down train. I will say what I believe he might have said had he been here to say it.
	Amendments 3 and 6, which were tabled by the noble Lords, Lord Goodlad and Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, seek to qualify the provision in the Bill by inserting further requirements on the defence to the offence of bribery for the secret services and the Armed Forces. Amendment 3 amends Clause 10 in order to make it impossible to prosecute a member of the Secret Services or the Armed Forces for bribery if their conduct was specifically authorised by the Secretary of State. Amendment 6 inserts a new clause, after Clause 13, requiring the Secret Services and the Armed Forces to keep records of all acts that would constitute a bribery offence were it not for the provision in Clause 13.
	We are minded to favour the approach put forward by the noble Lord, Lord Pannick, in Amendment 3. We have accepted the position that there needs to be a defence against the offence of bribery for certain classes of person. Those classes have been debated and amended, and now consist of the Armed Forces and the intelligence services. We have accepted that there are circumstances when men and women who are acting in the interests of the United Kingdom may need to perform acts which ordinarily would not be permitted.
	The supporters of Amendment 3 have identified some principles which need to be upheld, notwithstanding our acceptance that some latitude needs to be shown for persons operating in the country's best interests, in what may be very challenging circumstances. It is fair to say that bribery by the state, which is effectively what Clause 13 would allow as a defence to general offences of bribery, is so important a matter of public interest that the Secretary of State, as the Minister responsible-and directly answerable to Parliament for his actions-must be involved in its prior authorisation.
	On Report, my noble and learned friend, Lord Mackay of Clashfern, made the powerful argument:
	"The rule of law suggests that the Government should obey the law like everyone else".-[Official Report, 2/2/10; col. 162.]
	Any derogation from this principle should need explicit authorisation.
	Amendment 3 requires that the Secretary of State must consider what he is prepared to authorise. Ahead of any use of the state's powers to commit bribery with impunity, the Minister who is answerable to Parliament must give thought to what those powers will be used for. The amendment will require the active participation of the correct authority, and I can see much constitutional merit in that argument.
	The Government have told us before that they want safeguards in place so that officers and agents of the state are not left in a position where they do not know whether or not their actions amount to criminal conduct. We agree that Amendment 3 will do nothing to weaken the certainty given to members of the Armed Forces and intelligence agencies. Rather, we believe that the certainty that they were acting correctly would be strengthened by subjecting their possible actions to prior authorisation.
	We are also not particularly swayed by the argument against Amendment 3 made by the noble Lord, Lord Foulkes of Cumnock, and the noble Baroness, Lady Whitaker, that a system of prior authorisation would be too cumbersome. The Government have already laid their own amendments to limit the groups of people to whom Clause 13 would apply. From our reading of Amendment 3, there is nothing which would prevent a class of acts, operations or persons being granted prior authorisation.
	As the thoughtful speeches made by noble Lords today have shown, this is not an easy issue, and there are powerful arguments to be mustered on either side. Perhaps it is even fair to say that there are more than two sides to this argument. However, having listened carefully to what noble Lords have said, we are persuaded that the course laid out by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Woolf, my noble friend Lord Goodlad and my noble and learned friend, Lord Mackay of Clashfern, is the most appropriate to follow. We will therefore give Amendment 3 our support in the Content Lobby if noble Lords are minded to test the opinion of the House.

Lord Bach: My Lords, I thank all noble Lords who have spoken in this debate. I also thank them personally for their very kind remarks and say what a pleasure it is to be across the Dispatch Box from the noble Baroness, Lady Hanham. It is a long time indeed since we last faced each other across the Dispatch Box, and I will have something to say in a moment about the change of view of the Official Opposition. That does not take away from how pleased I am to be debating with her again.
	With these amendments, we return to the issue of prior ministerial authorisation of conduct by the intelligence services or Armed Forces that would constitute bribery under the Bill. At this stage of the Bill-I remind noble Lords that this is Third Reading-it is probably not helpful to dwell too much on the specifics of each of these amendments, but instead I shall address my remarks to the general approach that they seek to adopt in place of, or in addition to, what is currently in Clause 13. However, later on, I shall make a few observations on the details of the amendments. I also think it is incumbent on me to answer the points made by the noble Lord, Lord Thomas of Gresford. For the life of me, at first blush I cannot see why, if other amendments are acceptable at Third Reading, his is not, and vice versa.

Lord Thomas of Gresford: My Lords, I am most grateful to the noble Lord for saying that. We are at one on that. I think he appreciates that all I am doing is rephrasing what he wants to do but in a sensible way.

Lord Bach: My Lords, I do not think that the noble Lord is rephrasing at all. It is doubtful whether either set of amendments is fully in line with the guidelines set out in our rules. This is how things have ended up.
	I readily accept that there are different approaches to this issue, as the noble Baroness said a few minutes ago. One approach would be to provide for a blanket exemption for conduct by the intelligence services and the Armed Forces. A second approach is to provide a defence, so that a person who would otherwise be guilty of an offence under the Bill will not be guilty of an offence in the circumstances where the defence applies. After careful reflection, that is the approach that we have adopted in Clause 13. I readily accept that it is a departure from the approach in the draft Bill, but as with the Constitution Committee, particularly in regard to the Armed Forces and prior authorisation, our thinking on this has developed over time in close consultation with the intelligence agencies and the Ministry of Defence. The third approach, which is the one favoured by the members of the Constitution Committee of this House and the noble Viscount, Lord Colville, is an authorisation scheme. We also have hybrid models which seek to marry up an authorisation scheme with the defence.
	I do not suggest that one or other model is clearly the right one, while other models are wrong. Of course, a case can be, and has been, made for each one. However, after careful and extremely extensive deliberation, including with the intelligence services and the Ministry of Defence, we are satisfied that the defence provided for in Clause 13 provides the right mix of transparency, accountability and operational practicality.
	It is incumbent on me to explain why we do not agree with the noble Lord, Lord Thomas of Gresford, that it would be impossible for a defendant to be able to run a defence fairly. The noble Lord argues that the defence is not an appropriate model for dealing with this issue on the basis that it would not be possible in practice for a person to establish the defence. He has also suggested that the operation of such a defence would create too many difficulties in practice. We do not agree. First, these arguments do not recognise the reality that cases which genuinely fall within the scope of the defence in the Bill are most unlikely to come before the courts at all. Where any case came to the attention of the police, they would, of course, be provided by the agency concerned with any material relevant to their investigation. That may well result in the police not taking the investigation any further forward on the basis that the case plainly falls within the terms of the defence. Where a case does reach the Crown Prosecution Service, it would have available the relevant material and would take it fully into account in deciding whether to bring a prosecution. A prosecution will not be brought where it is clear that the defence applies, as there would be no realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors would not be met in such a case.
	What of the situation where a case is brought to court and a person wishes to rely on the defence? In our view, the suggestion that it would be impossible for a person in such a case to establish the defence is wrong. There is no legal or practical reason preventing a defence being established. The criminal courts are well used to dealing with cases where sensitive information is involved. All the usual criminal procedures will apply. The defendant would, no doubt, seek disclosure of any relevant material held by others that he believed supported his case.

Lord Thomas of Gresford: Can the Minister give me one example where there is a reverse legal burden of proof on a defendant who has to rely upon sensitive material?

Lord Bach: I am not sure I can give the noble Lord an example, but I do not think that the fact I cannot implies that it would be impossible to run a defence adequately in that case.
	Independently of this, the disclosure duties imposed by the Criminal Procedure and Investigations Act 1996 mean that the agency involved would identify any material held by it that might be potentially available for disclosure, applying that Act and the codes made under it. Any material undermining the prosecution case or supporting the defence case would need to be disclosed in the usual way. As far as public interest immunity is concerned, there is the possibility in cases of this kind that an application might be made to the trial judge that certain information should not be disclosed on the grounds of public interest immunity. However, an application would not, in reality, be made in respect of material essential to the defence that is being relied upon by the accused. Indeed, a judge would not allow an application in respect of such material. If the material were essential, but too sensitive to be disclosed, the prosecution would choose not to proceed further in the public interest.
	Therefore, there cannot be any question that a defendant who stands trial for such an offence would not have available any material that he or she needed to deploy to establish the defence or could not have a fair trial. The defendant will, of course, be entitled to go into the witness box to put his or her case. The arguments that have been made that it would be impossible for the defendant to meet the legal burden of proof are, we think, misguided. Where extremely sensitive material is involved, it is open for the Crown to apply for all or part of the proceedings to be held in camera under the Criminal Procedure Rules. This has happened in past cases and can happen in the kinds of cases that we are discussing here, if necessary, and I hardly need tell the House that the court can make reporting restriction orders as appropriate.
	Noble Lords should be under no illusion. These kinds of situations arise from time to time, and the criminal courts find ways of dealing with them fairly. If the courts were not able to deal with sensitive criminal cases where defences are an issue, one might ask how it has ever been possible to convict anyone under official secrets legislation. We therefore disagree with the noble Lord when he says that a defence could not be run.
	However, as it is not, for one reason or another, the noble Lord's amendment that is before the House this afternoon, let me turn to the amendments that are and deal first with transparency. I apologise that this reply is quite lengthy, but the importance of this matter demands that the Government put out their case as best they can. The Bill could have been silent on the whole question of whether the intelligence services and the Armed Forces have to engage in conduct that would constitute a Clause 1 or Clause 2 offence. Indeed, this is the approach adopted in many other countries. We concluded that this would have been disingenuous and, equally importantly, would not have provided the necessary legal protection and certainty for those who have to engage in such conduct on behalf of the state.
	At one level, Clause 13 is arguably an authorisation scheme. In passing this Bill, Parliament would in effect be saying that we accept that there will be occasions when it is necessary for the proper operation of the intelligences services and the Armed Forces when engaged on active service to undertake conduct that would amount to bribery. The services and Armed Forces would need their own internal controls-I will come on to this-but Parliament, not Ministers, will in practice have authorised such conduct by this clause when, and only when, it can meet the test of necessity.
	That test of necessity is an important one. We are not giving the intelligence services or the Armed Forces a blank cheque. The person offering the bribe will have to be satisfied that this test is met. One of the difficulties that we have with the amendment of the noble Viscount, Lord Colville, is that it omits the necessity test and thereby reduces the threshold for an act of bribery in the exercise of the functions of the intelligence services or a member of the Armed Forces.
	Given that we are dealing here with the intelligence services and the Armed Forces engaged on active service, there must be significant limits on transparency. It is long-established practice that Ministers do not comment on operational aspects of the work of the intelligence agencies. Similar considerations apply to operations by our Armed Forces. The reason for that is obvious: to do so could significantly undermine their operational capability and put lives at risk. I will come on to other aspects of Amendment 6 in due course, but I cannot accept the proposition that an annual report which goes into detail about the operation of the guidance should be laid before Parliament.
	Turning to the question of accountability, I mentioned on Report the difficulties that we have with either a case-specific or class-based ministerial authorisation scheme. The former would in our view be unmanageable and would not confer the necessary operational flexibility. I am grateful for the support that that proposition has had this afternoon from my noble friend Lord Foulkes, with his experience.
	One only has to consider the dynamics of military operations in Afghanistan to recognise the impracticability of a Minister sitting in London having to approve in advance each act of bribery. I recognise from the discussions I have had with a number of noble Lords, and from the debate this afternoon, that there is a general acknowledgment of the difficulties with a case-specific authorisation. I welcome that. As to a broad class-based authorisation, we have serious doubts about whether it would achieve significant added benefits in terms of accountability beyond that already achieved by Clause 13(1) and the other mechanisms that I am about to describe.
	I am grateful to the noble Lord, Lord Pannick, and other noble Lords who have signed his amendment, and to the noble Viscount, Lord Colville, who have sought with their amendments to find a middle way. None the less, both still have an authorisation scheme at their heart and, in the case of Amendment 3, the reference to conduct being "specifically authorised" suggests that they have in mind a case-specific authorisation or at least something very close to that. But it is not clear what type of authorisation is intended.
	Amendment 6, in the name of the noble and learned Lord, Lord Woolf-again, I am very grateful for what he has said-seeks to address the accountability question from a different angle and to put in place internal accountability arrangements to be set out in mandatory guidance issued by the Secretary of State. I assure the House that rigorous internal and external procedures, and controls governing all aspects of the activities of the intelligence and security services, are already in place. We firmly believe that these safeguards are sufficient to guard against any misapplication of the defence under Clause 13 and that internal procedures and record-keeping are properly a matter for the intelligence services and Armed Forces, and not for statutory regulation.
	I say that because all three intelligence services are statutory agencies. They conduct all their activities within a framework of legislation, which sets out their functions or purposes and the covert methods which they employ to perform these functions. There are no circumstances in which the intelligence services would make a payment or offer an inducement which might, in the absence of the defence, constitute an offence under the Bill, other than to facilitate legal activity in support of the services' statutory functions and purposes. The operational activities of the agencies are subject to a robust system of internal checks in which the onus is on the intelligence officer involved to demonstrate the necessity and proportionality of the proposed activity.
	The level of oversight required for particular types of covert activity is set out explicitly in legislation; namely the Intelligence Services Act and the Regulation of Investigatory Powers Act. All activities conducted under this legislation are subject to scrutiny by the independent Intelligence Services Commissioner and the independent Interception of Communications Commissioner. These independent commissioners must, by law, be given access to whatever documents and information they need, and report annually to the Prime Minister and to Parliament.
	Furthermore, the Investigatory Powers Tribunal, an independent body made up of senior members of the legal profession or judiciary, can hear and investigate the complaint of any person who is aggrieved by anything which he believes the intelligence services or GCHQ have done in relation to him or to any property of his. If an individual thought for any reason that he had suffered a financial or other disadvantage as a result of an act of bribery committed by any of the security and intelligence agencies, that individual would have recourse to the Investigatory Powers Tribunal, which has the legal power to investigate and to order such remedial action as it sees fit.
	Moreover, a record is already kept within each of the security and intelligence agencies of every payment made, by and to whom, and, in the case of a covert human intelligence source or agent, what assistance that individual has provided to the service or agency involved. Payments are subject to internal audit controls, and the intelligence and security services' accounts are subject to audit by the National Audit Office.
	Parliamentary accountability of all three intelligence services is provided by the intelligence services committee, which examines the policy, administration and expenditure of the three services. Today, we have heard from a member of that committee, my noble friend Lord Foulkes. The Defence Select Committee in the other place provides similar oversight of the work of the Armed Forces.
	The Armed Forces are clearly highly disciplined to follow and maintain the rule of law. They are subject to the jurisdiction of the service police, which operate wherever the Armed Forces serve; the service prosecuting authority under the independent Director of Service Prosecutions; and the service courts, which can sit anywhere that the Armed Forces are operating.
	All money spent on military operations has to be fully accounted for. It is subject to strict government accounting rules, and internal and external audit. They can be expected to operate within the confines of the defence provided under this Bill in the same way as they can be expected to obey the full panoply of the criminal legal system of law. Judicial oversight will be provided in this context by the courts in any bribery case brought to trial and the defendant will rely on the Clause 13 defence. Where it is clear that a person meets the test of necessity, the investigator or the prosecutor will surely decide not to proceed with the case because there was no realistic prospect of securing a conviction.

Lord Clinton-Davis: On the safeguards which have been referred to by my noble friend, several noble and learned Lords, including a former Lord Chief Justice, a former Attorney-General and a former Lord Chancellor, have all expressed concern about the present situation. Notwithstanding what my noble friend has cogently argued, is there not a possibility of being able to scrutinise further what has been put forward by them?

Lord Bach: My Lords, I appreciate as much as anybody the distinction of the noble and learned Lords who have spoken in this debate, in Committee and at Report. I agree, what they have to say has to be considered extremely carefully. However, as I have said at all stages, as far as this matter is concerned, the Government's view is that we should not change the policy that we have put into this Bill. I will come onto that in a moment when I finish.
	As I was saying, in such a case, independent oversight will have been provided by the investigator or prosecutor. Where the suspect's account was not corroborated by the intelligence services or Armed Forces, and the case was brought to trial, the judge would ensure, as judges always do, the fairness of the trial and the jury would decide whether or not to convict.
	In conclusion, the Government understand and respect the arguments that have been put forward in support of these amendments. I have tried to set out why I cannot commend them to the House. We believe that the defence in Clause 13, coupled with the existing well established accountability mechanisms which ensure democratic oversight of the work of the intelligence agencies and of the Armed Forces, provides an appropriate and workable level of accountability. That lay at the heart of the Constitution Committee's concerns. We have been listening to the debates on this clause and we brought forward a significant concession at Report which removed law enforcement agencies from the ambit of the clause, but we are clear that the defence as it is now constituted is a core part of the Bill. I would like to think I may have persuaded the House that it is necessary and already subject to appropriate safeguards and I ask noble Lords with amendments in this group to withdraw them. If they are not minded to do so, I invite the House to reject them. If your Lordships see fit to pass these amendments, the Government will have to think very seriously about whether this Bill should be pursued. I do not say this as a threat. I am repeating in other words what I have said on a number of occasions. I cannot emphasise enough the importance Her Majesty's Government attach to Clause 13 in its current form.

Lord Maclennan of Rogart: Does the Minister feel able to address, even briefly, an argument that was advanced by the chairman of the Constitution Committee, the noble Lord, Lord Goodlad, about the importance of prior authorisation in the event of individuals being subjected to jurisdictions overseas where the panoply of defences and arguments would not apply? Can he say-although he clearly has not followed what I have said-what he thinks is the virtue or otherwise of the arguments proposed by the noble Lord, Lord Goodlad, about the possibility of a case arising against a member of the services in other jurisdictions?

Lord Bach: What we are taking about in this Bill is a defence of bribery that could be tried only in United Kingdom courts. It could be as a result of activities by an accused overseas, but anyone charged, as I understand it, would be tried in our courts under our rules with that same fairness for which our rules allow.

Lord Elystan-Morgan: I raise a matter to which I alluded on the last occasion with regard to the number of prosecutions in the past five years, if any, of any members of the armed services or the intelligence services in respect of bribery and corruption.

Lord Bach: The noble Lord asked me that question before, and I still do not have the answer-but I suspect that there have been very few prosecutions, if any. Even after this Bill has passed, if it is passed in its present form, we do not expect to have very many cases of this kind to report. That is part of my argument. We believe that with the Clause 13 defence the vast majority of cases will not end up in court, because the member of the Armed Forces or the intelligence services who is suspected will have available the defence in Clause 13. That is something that the police and the prosecutor will know.

Lord Lloyd of Berwick: I just ask for the Minister's help. Let us suppose that one is persuaded by him of the difficulties of specific authorisation in advance for the security services and Armed Forces. What I am not clear about is his fundamental objection to Amendment 1 from the noble Lord, Lord Thomas, which preserves Clause 13 but in a different form. Could he explain that to me?

Lord Bach: With the greatest respect to the noble and learned Lord, the amendment would not preserve Clause 13, which is a defence to an offence of bribery. The offence is committed but there is a defence to it if Clause 13 is satisfied. What the noble Lord, Lord Thomas of Gresford, suggests is that there be an exemption altogether to the offences of bribery set out in the Bill, so no offence would have been committed at all.

Lord Baker of Dorking: In the light of the Minister's remark that, if the House does not agree with the Government's proposals, the Government may bring forward no other proposals, I suggest that would be a dereliction of duty on the Government's behalf. It may be necessary to use these powers and, if is necessary to use them, protection must be given to those who use them. The essence of his argument against prior authorisation is impracticability. Let us suppose that the power to tap telephones and open letters did not exist today and someone suggested that it should be given to the Government in the same way as he recommends a power should be given for bribery. It would have no chance of passing whatever, because the principle has been established that, when you ask a citizen of this country to perform an illegal act, it requires the prior authorisation of the Home Secretary, the Foreign Secretary or the Secretary of State for Defence. In the case of defence, it would be practicable; if the proposal emerged from the field of war, it could be sent immediately to the Secretary of State-there would be a secure line to his office, and he could decide whether it should be approved. It is practicable, and the legal advice that we have had today from the distinguished legal luminaries in this House should be listened to.

Lord Bach: I accept the noble Lord's great experience on this point, but I am advised that with regard to offences of the kind that we are discussing, a case-specific approach would be completely impracticable. For example, for members of the Army in Afghanistan who have to take decisions quickly, out of the blue and without expecting to, in dangerous situations, there would be absolutely no way in which such prior authorisations could be given by a Secretary of State for Defence in London. That would also apply to those in the security services, who also have to take decisions of this kind sometimes. I hoped it was generally agreed that the case-specific authorisations were absurd.

Lord Pannick: I thank the Minister for his careful and courteous consideration of this issue at all stages of the Bill.
	As I understand the Minister, the essence of the Government's objection to Amendment 3 is that it would make prior authorisation impracticable. However, the whole point of Amendment 3 is that it allows the Secretary of State to authorise; it does not require him to authorise in any circumstances where he considers it impracticable. It would not prevent acts of bribery on behalf of the state going forward in such circumstances. In any event, each act of interception has to be authorised by the Secretary of State. It is very difficult to understand why a different approach should be taken in this context.
	With the greatest respect, the Minister simply has not answered the concern expressed by a number of noble Lords in this debate. Clause 13 is defective, because it contains no procedure whatever for consideration by the Minister who is answerable to Parliament prior to acts of bribery being carried out by the state. This is a matter of enormous public importance. It purports to protect the public interest only after the event by a criminal prosecution-a cumbersome procedure, which as the noble Lord, Lord Thomas of Gresford, has explained, is also unfair, because it places the burden of proof on the defendant, who will not have access to the necessary information. It gives inadequate prior guidance to those individuals who will be carrying out the acts of bribery on behalf of the state.
	I say to the noble Lord, Lord Foulkes, that nothing in the valuable work of the Intelligence and Security Committee can rectify these defects in Clause 13. In the light of the support given in the House today, I wish to test the opinion of the House.

Division on Amendment 3
	Contents 154; Not-Contents 118.
	Amendment 3 agreed.

Clause 13 : Defence for certain bribery offences: legitimate purposes
	Amendments 4 and 5 not moved.
	Amendment 6 not moved.
	Bill passed and sent to the Commons.

Anti-Slavery Day Bill
	 — 
	First Reading

The Bill was presented and read a first time.

Damages (Asbestos-Related Conditions) (No. 2) Bill
	 — 
	First Reading

The Bill was presented and read a first time.

Northern Ireland
	 — 
	Statement

Baroness Royall of Blaisdon: My Lords, with the leave of the House, I shall repeat a Statement made in the other place by my right honourable friend the Prime Minister. The Statement is as follows:
	"Mr Speaker, I wanted to report to the House at the earliest opportunity on the agreement reached between the DUP and Sinn Fein at Hillsborough Castle, and which we and the Irish Government fully support. Their agreement will lead to the completion of devolution of power to Northern Ireland. I will also report on the accompanying arrangements that Parliament will need to make to enable devolution to be completed.
	I am making this Statement conscious that General de Chastelain has today announced that the INLA, responsible for more than 110 deaths during the Troubles, and the official IRA, have decommissioned their weapons. The House will want to record our thanks to the international commission, which has overseen decommissioning by the UDA, UVF, PIRA and now INLA and the official IRA, as part of the process of moving Northern Ireland from violence to peace.
	In 1998, with the signing of the Good Friday agreement, Northern Ireland opened a new chapter in the peace process. The St Andrews agreement marked the next step forward. Now we have reached a significant and defining moment. Each of the Northern Ireland agreements since 1998 has had a different basis on which it was reached. The Good Friday agreement was an agreement between the participants to the talks, including the two Governments. St Andrews was an agreement between the two Governments, later endorsed by the parties through their participation in the newly-elected Assembly. The Hillsborough Castle agreement-the final stage of the journey to completing devolution-was reached between the two parties which were the largest in the Assembly following the 2007 elections. It was the outcome of many hours of talks, consultations and plenary meetings involving all the Assembly parties. We should be in no doubt about its significance. Without this agreement the work done at St Andrews and Belfast could not have been moved forward. Without the completion of devolution the whole process of devolution and the peace process itself would be at risk, so this agreement is essential to securing the future, because in turn it will bring stability, investment and jobs.
	For decades, conflicts over institutions have dominated the politics of Northern Ireland. Even in the past two years a failure to agree on the devolution of policing and justice has cast a shadow over Northern Ireland's politics. When the cross-community vote takes place on 9 March and the parties request the transfer of powers, Northern Ireland's politicians will have, by 12 April, full control over their Government and be able to focus on the economy, jobs, housing, public services and, of course, policing and justice. With this agreement, communities once locked in the most bitter of struggles are choosing to be bound together in a shared future, with a common destiny, and it must be in a spirit of partnership.
	None of this could have been achieved without working closely with the Irish Government, and I pay tribute to Brian Cowen; the Irish Foreign Minister, Michael Martin; and to the Taoiseach's predecessors, Bertie Ahern and Albert Reynolds. Nor could it have been achieved without the continued and unstinting support of the American Government and Presidents Clinton, Bush and Obama. I especially want to thank Secretary of State Clinton for her generous support.
	This agreement is the conclusion of a process, and the House will want to record its thanks for the work of Tony Blair, and before him John Major. The House will want to thank previous Secretaries of State for Northern Ireland. I want to record my personal thanks to them and to the current Secretary of State for Northern Ireland, and his Minister the right honourable Member for Wythenshawe and Sale, East for the time they spent in detailed negotiations and for their patience, resilience and wisdom.
	Two weeks ago, the Taoiseach and I joined the parties for part of their negotiations in Hillsborough. There has been comment about the amount of time needed to reach this agreement. We should recognise that the talks were demanding because they went to the very core of Northern Ireland's shared future. But implicit in the agreement now reached between Sinn Fein and the DUP, and there for all to support, is an even greater prize: that the parties together seize this opportunity to build a new trust in a fresh spirit of respect, co-operation and understanding. It is my view that this agreement represents a reasonable concord for all to be able to put difference to one side and enter in a spirit of good will to a better shared future.
	There were four crucial breakthroughs. First, the parties have resolved the outstanding issues on the transfer of policing and justice powers and agreed a timetable for the completion of this final stage of devolution. Following community consultation, the First and Deputy First Ministers will jointly table a resolution seeking a transfer of policing and justice powers by means of a cross-community vote in the Northern Ireland Assembly on 9 March-four weeks tomorrow-for devolution to occur on 12 April. Then Parliament will be asked to approve the necessary transfer orders so that devolution can occur on 12 April.
	Secondly, the parties have agreed how the devolution of policing and justice will work in practice and in particular how the relationship between the Justice Minister and Executive will work.
	Thirdly, the parties have committed to a new and improved framework for regulating and adjudicating on parades which will maximise cross-community support. At its core is a commitment to ensuring local dialogue, transparency and mediation, as well as specific proposals for dealing with contentious parades. The First and Deputy First Ministers will set up a co-chaired working group to take forward this work with legislation on the agreed outcomes completed in the Northern Ireland Assembly before the end of this year.
	Fourthly, this agreement also proposes to address how devolved government could work better in Northern Ireland. In the talks, all the parties raised the issue of the need for greater efficiency and transparency and also the need for greater inclusiveness. It is clear from the agreement that this was firmly recognised. The First Minister and Deputy First Minister have therefore proposed three very important working groups at Executive level, to begin work immediately. I am pleased that the First Minister is in the House today as we discuss this.
	The first group will look at how the Executive might function better and how delivery might be improved, and two further working groups will deal with all outstanding Executive business and make recommendations on how progress can be made on all outstanding matters from the St Andrews agreement.
	The House will know that last October I sent to all party leaders in Northern Ireland my proposals for a financial settlement-worth an additional £800 million to underpin the new department of justice-available only if and when the parties decided to take the historic step of requesting the transfer of powers of policing and justice. All the details of this have been studied by the Assembly and Executive Review Committee.
	The financial settlement will ensure stability for the new department, enabling it to deal with those issues outstanding from the Troubles and current security needs. I am sure that it is the wish of the House to ensure that in reaching such an agreement the new department has the resources to complete the Patten proposals on policing and meet the unique pressure of Northern Ireland's past and present security needs.
	Taken together, these parts of the agreement will lead to a better functioning Northern Ireland Executive who are better able to focus on growth, jobs, public services and of course law and order. I believe our duty now is to do all we can to encourage the parties to support and give effect to this agreement.
	Subject to the cross-community vote on 9 March, the First Minister and Deputy First Minister have now agreed to support an accelerated passage for the budget Bill and any related Assembly steps to ensure devolution of powers by 12 April.
	Too many lives have been lost in Northern Ireland. Just a few weeks ago, dissident republicans tried to murder a police officer, Constable Heffron. They did not succeed, but he was very badly injured. There have been significantly more attacks in the past 12 months than in any recent year. Indeed, the House will record with sadness the murders just 12 months ago of two brave young British soldiers. On 9 March last year, criminals also murdered a brave PSNI officer, Stephen Carroll.
	The IMC report at the end of last year was clear: early devolution would be a potent intervention on the activity of the dissidents. So the decisions made in the past few days are the most powerful signal we can send to those who choose violence over politics. I hope that the whole House will join me in sending an unequivocal message to those who would defy the will of the people: that the politics of peaceful change must irrevocably succeed in Northern Ireland and it must overcome whatever obstacles are put in its way.
	The next stage is to show that this new stability can bring results in jobs and prosperity. So I am grateful that Secretary of State Clinton has immediately announced her invitation to the First Minister and Deputy First Minister to meet her and the US economic envoy, Declan Kelly, to see how together the UK, Irish and American Governments can accelerate all options for encouraging new inward investment into Northern Ireland.
	The peace process has taken men and women of courage who were prepared to set the past aside in the service of the future. The peace of Northern Ireland and its future stability ask that we put the interests of all its people above the interests of party. We have a proud record in this House of all-party support. Today it is important that we support not only the principle but also the dates in the agreement. Upon all of that falls the responsibility to make this work. Together we should complete the process of giving the government of Northern Ireland to the people of Northern Ireland. With policing and justice in the hands of the Northern Ireland Executive, the future of Northern Ireland is finally and truly in the hands of its people. I commend this Statement to the House".

Lord Strathclyde: My Lords, I thank the noble Baroness for repeating that welcome Statement. Once again, its length and language show the personal hand of the Prime Minister, and for once I do not offer that as any criticism. The Prime Minister has clearly felt and lived up to a high sense of duty that transcends party allegiance, as did the Taoiseach and the Northern Ireland politicians involved. Everyone in the House would thank him and them for that, as will the patient, good people of Northern Ireland.
	We all hope that this latest agreement will be another step on the road to a secure peace under the rule of an impartial and independently executed law. It has been a long road. The opening pages of the Statement said a new world began in 1998. I was therefore glad to hear glancing references not only to Mr Blair but also to Sir John Major. After the brutal blows handed to my party by IRA and INLA terrorism, still so painfully remembered today, it was not an easy choice to make. However, it was the right choice to make to try and take the Armalite out of Ulster politics. I welcome further decommissioning by the INLA and the official IRA.
	We support devolution in Northern Ireland, and so we also welcome this agreement between Democratic Unionists and Sinn Fein. We support the principle of policing and justice powers being devolved to Stormont. That is why, as my right honourable friend Mr Cameron earlier told another place, we backed legislation last year, and why we will honour the financial package in the agreement. Our prime objective will always be a peaceful, prosperous and stable Northern Ireland in which all parts of the community share.
	However, amid the optimism surrounding this agreement we need a cold, open-eyed realism. Can the noble Baroness tell us whether there has been any progress in getting the Real and Continuity IRA to lay down arms? In fact, is there hope that this agreement will change that? How many of the so-called dissident republicans referred to in the Statement are in arms? We have come a long way, but as the noble Baroness said, the cowardly attack on Constable Heffron last month shows that real dangers endure.
	Can the noble Baroness answer several specific questions? First, is there any significance in the change from the phrase "operational independence" of the police to "operational responsibility"? Secondly, the agreement proposes the transfer of police and justice powers on 12 April. Under the current law, the department of justice in Northern Ireland, which will be responsible for these matters, will be dissolved on 1 May 2012 unless there is agreement on a replacement. Is there a risk of another set of very difficult negotiations unless this is resolved now?
	Thirdly, the Parades Commission has just three weeks from 9 February to agree its proposals. Will the vote on policing and justice powers in the Assembly on 9 March go ahead even if that deadline is not met? Fourthly, the First and Deputy First Ministers are to examine unimplemented elements of the St Andrews agreement. What issues will that cover? Fifthly, last week's agreement is between just two of the four parties at Stormont. Can the noble Baroness assure the House that no specific concerns have been raised by any other parties?
	Finally, there are several reports of other agreements not included in the formal text. Will the noble Baroness clarify whether these exist; and, if they do, will she undertake to lay a document before the House? In fact, if the noble Baroness would prefer to respond to any of my questions by letter, I would be happy to receive it.
	The devolution of policing and justice is something that we have to get right. Without the impartial and fearless rule of law, there is no true freedom. We hope now that the politicians of Northern Ireland will focus on the issues that people care about most: health, housing, schools, jobs and social deprivation. We should all pray that we will see a return to normal, democratic, devolved politics in a long-tormented Northern Ireland within the United Kingdom.

Lord Smith of Clifton: My Lords, I, too, thank the Leader of the House for repeating the Statement made in another place by the Prime Minister. There will be relief that the Hillsborough talks have led to an agreement; but much remains to be done. The excruciatingly protracted nature of the negotiations does not augur well for future progress towards achieving a mature civil society and a fully functioning democratic polity. That will take decades. Northern Ireland remains a divided society, fractured on sectarian lines. One precondition for further progress is for the unionist community to come together to form a united, coherent and moderate political organisation. Continuing triangulation between the various unionist factions will risk the strangulation of Northern Ireland politics.
	As the Hillsborough agreement recognises, the Executive must become more effective and assume collective responsibility for their actions. This is vital for the successful management of a divided society, which can then cease to rely, as it has for the past dozen years, on the de facto Dublin-London condominium. Tensions are best managed locally, but that requires a properly functioning Executive.
	In the much longer run, we must hope that conditions will permit the creation of "normal" politics, based on differences of ideas and programmes rather than sectarian interests. That is a distant dream, and doubtless there will be many setbacks on the way; but an immediate obstacle has now been cleared with the transfer of responsibility for policing and justice from London to Belfast, and we wish the proposed Minister of Justice good fortune in setting up and exercising this vitally important office.
	The transfer marks an irrevocable step-I stress that. The status quo ante can never be restored, whatever the circumstances. If the devolutionary settlement now formally completed breaks down, the likely solution will be some sort of mandated territory administered by the European Union or by a de jure London-Dublin condominium. Such a prospect should concentrate minds on striving to create a democratic polity, a mature civil society and a prosperous economy for Northern Ireland. As the noble Lord, Lord Strathclyde, said, that must be the hope of all of us in your Lordships' House. We on these Benches welcome the agreement.

Baroness Royall of Blaisdon: My Lords, I am extremely grateful for the warm welcome for the Statement from noble Lords opposite. It is a pleasure and privilege to repeat this Statement, knowing that truly it has bipartisan support. That is a mark of all the negotiations that have taken place, not just since 1998, but, as the noble Lord, Lord Strathclyde, said, also during earlier Conservative Administrations. We have come a long way: we all recognise that today.
	The noble Lord, Lord Strathclyde, asked about decommissioning. We have come a long way on decommissioning and the agreement sends a clear message to the men of violence that politics, not violence, is the way in which conflicts are to be resolved. It is hoped that the people who still have their arms will listen to that message and that they will decommission. However, to date there is no news of the Real IRA and the Continuity IRA decommissioning.
	As for the operational independence of the police, the operational independence of the chief constable will continue to be enshrined in legislation. So nothing should be read into the terminology within the agreement on that front.
	The noble Lord asked about the risk of more difficult negotiations in 2012. The agreement last week at Hillsborough marks a new phase in Northern Ireland politics. I believe that the agreement provides a very firm basis for addressing all outstanding issues and demonstrates the desire and capacity of all parties to work together on difficult issues in a spirit of co-operation. One of the working parties announced in the agreement is specifically looking at outstanding issues from the St Andrews agreement, and I am sure that it will consider all outstanding issues.
	I am also very grateful for the welcome from the noble Lord, Lord Smith of Clifton. He is right to say that although it is an enormous relief that the agreement has been reached, there is much more to be done. There has indeed been a fractured society in Northern Ireland for many years, but there appears to be a real will-not just on behalf of politicians but on behalf of the people of Northern Ireland-to move forward together. The noble Lord rightly said that everyone feels that the Executive must become more effective. That is why the agreement encompasses a working group which we hope will be chaired jointly by Sir Reg Empey, who has particular concerns about these issues, and Margaret Ritchie, whom we must congratulate as the new leader of the SDLP.
	Like the noble Lord, Lord Clifton, we believe that normal politics is what everybody in Northern Ireland desires and is striving for, and that we must look forward to a healthy democratic polity and a mature civil society.

Lord Rogan: My Lords, I also thank the Minister for repeating the Statement. I am always extremely reluctant to bring a discordant note to your Lordships' House. However, what has been widely acclaimed as an historic agreement is somewhat less-indeed, it is not that. The document given to us this afternoon has neither signature nor ownership and at best it can be considered only as a starting point for negotiations in the future. I am extremely saddened that my Government endeavour to mislead the electorate of Northern Ireland and indeed your Lordships in this House about the significance of this two-party arrangement.

Baroness Royall of Blaisdon: My Lords, I am sorry to hear of the strong views and the concern expressed by the noble Lord. All parties were invited to participate to some extent in the talks-

Noble Lords: No!

Baroness Royall of Blaisdon: My Lords, perhaps I was using my words without due consideration. All parties were invited to participate in round tables and to make their views known. It is now for the parties to take this forward. The Government are not imposing anything on the people of Northern Ireland or their politicians. This agreement came out of the people of Northern Ireland and we believe that is how it should be taken forward.

Lord Dubs: My Lords, does my noble friend agree that on what is a good day for Northern Ireland we should not forget the important part played in the process by the noble Lord, Lord Trimble, and the Ulster Unionist Party, and indeed by John Hume, Seamus Mallon and the SDLP? Without their brave contributions throughout the peace process we would not have got to where we are today.
	Finally, we have established a very good relationship between Britain and the Government of Ireland. Does my noble friend agree that it is absolutely essential that we continue to work at that relationship, which has been a basis not only for peace in Northern Ireland but for good relationships between this country and Dublin?

Baroness Royall of Blaisdon: My Lords, I will take the last point first. Yes, the agreement was reached-it marked a very good relationship between the two Governments, and I am confident that that will continue-and, yes, perhaps I was remiss earlier in not acknowledging the enormous role played by the noble Lord, Lord Trimble, and by the Ulster Unionist Party and the SDLP, in ensuring that ultimately this agreement could be reached.
	I should have stressed in my answer to the noble Lord, Lord Rogan, that the talks were open and inclusive and that all parties had the opportunity to be fully involved.

Lord Trimble: My Lords, I would like to think that, in the briefing material available to the Leader of the House, there is a reference to the wise words of Seamus Mallon that were uttered in a debate in the other place in reply to my having called for the devolution of policing and justice. He said that for that to happen, the Northern Ireland Executive would have to show that the Assembly is robust and durable. Does the noble Baroness not agree that he was quite right to identify those requirements, but that unfortunately the present Executive have shown a woeful inability over the past few years to agree on almost anything, and that if this is going to work they will have to find in themselves characteristics that have not so far been in evidence?

Baroness Royall of Blaisdon: My Lords, I have no doubt that Seamus Mallon, whose party, I understand, welcomed the agreement today, is right that the Assembly should be robust. However, that is precisely why part of the agreement was to establish the working party, which I am sure will ensure that the working methods and various other issues pertaining to the Executive are changed and that we have a robust Executive who can take the Northern Ireland Assembly forward so that it well represents its people not just in the devolution of policing but in jobs, housing and all the other things that matter to the people of Northern Ireland.

Lord Browne of Belmont: My Lords, I wholeheartedly welcome the Government's Statement today and thank the Leader of the House for addressing us this afternoon. Before I proceed further, I draw the House's attention to the fact that I am a Member of the Northern Ireland Assembly for the East Belfast constituency.
	The agreement that was announced at Hillsborough Castle on Friday represents the successful conclusion of a long and arduous negotiating process. Although there were numerous dark days and false dawns, the determination of my party to succeed never wavered, and the perseverance of our negotiators has achieved a deal that we can recommend with confidence to the people of Northern Ireland. Indeed, we will consult the community in the next few weeks. In particular, I pay tribute to the dedication and commitment of my party leader, who, despite personal difficulties, devoted himself unstintingly to the task of achieving a successful outcome to the negotiations.
	This agreement not only represents an appropriate resolution of the problem of devolving policing and justice powers to the Northern Ireland Assembly, but reflects the strong public desire for cross-community co-operation through the successful functioning and development of the devolved institutions. The agreement was made in Ulster with the agreement of most political parties, and it provides a solid framework for the devolution of policing and justice powers while at the same time resolving the parading issue that had the potential to frustrate progress in the future. It is regrettable that not all parties have seen fit to participate fully in the negotiating process. Indeed, at least one party has to date refused to support the agreement that was arrived at. It must be hoped that the party concerned will be made aware of the serious damage to the peace process that its continued obstinacy may cause, and that wiser counsel will prevail.

Lord Tunnicliffe: My Lords, the Companion says that although brief comments and questions from all quarters are allowed, Statements should not be made the occasion for an immediate debate. I think that this is a little beyond brief.

Baroness Royall of Blaisdon: My Lords, I would also like to mark the determination of the noble Lord's party, but especially that of its leader, Peter Robinson, who clearly did a splendid job in very difficult circumstances. I also agree with the noble Lord that there is strong public desire for cross-party co-operation in Northern Ireland.

Viscount Brookeborough: I should like to ask the noble Baroness the Leader of the House for reassurance on one topic which has not really been covered in the Statement-I realise that it lies slightly outside. The Continuity IRA and the Real IRA-the dissidents-are definitely providing a greater risk and threat than they previously have. There is, according to the police, a haemorrhaging of people from the old IRA and therefore the technology that they use. The munitions that they have been using lately show that quite clearly.
	In Northern Ireland, we have quite a large part of the security services from this country, and that has not been devolved. We would like to hear an assurance that that effort will not ease up as a result of the success of this agreement. We must also remember that more recently, the information that has been given on various incidents has been from the Republic; the incidents we have had no lead in to have been planned in the north. Therefore, I think that we have a right to ask for increased security, and for reassurances that those services will not be devolved.

Baroness Royall of Blaisdon: My Lords, the noble Viscount, Lord Brookeborough, makes an extremely important point. The Government completely recognise the need for the national security services to remain in Northern Ireland. As I understand it, they have recently enhanced allocations. I assure the noble Lord that the national security service in Northern Ireland will continue to be properly funded so that it can properly defend the interests of the people there.

Baroness Blood: My Lords, I, too, thank the leader for bringing us this Statement, and place on record the thanks of the people of Northern Ireland to the two Prime Ministers who gave up their time freely to deal with our issues. It is a good day for Northern Ireland that we have agreement, even in a document. So from that point of view, Friday was good. However, confusion reigns in Northern Ireland. Listening to the media from Friday to today, most people out there do not understand what is going on. I have heard a lot about community confidence. Will the noble Baroness say how the general public will know what is going to happen in the future?

Baroness Royall of Blaisdon: My Lords, that is a very good point. I am sorry that I cannot tell my noble friend exactly what will happen to ensure that the people of Northern Ireland are properly informed not just of the agreement, but the process which will now be undertaken. I completely agree that communication is now of the essence in ensuring that the people of Northern Ireland are taken with the politicians of Northern Ireland on the journey into this exciting new future. I will come back to my noble friend in writing if I may, and will place a copy of the letter in the Library of the House.

Lord Eames: My Lords, I welcome the fact that the Statement begins with a reference to the decommissioning of the INLA. A few weeks ago, I was one of the two independent observers at the decommissioning of the weapons of the largest loyalist paramilitary organisation, the UDA. Does the Leader agree with me that one of the real tests now for the devolved Administration in Northern Ireland is to address the fact that, in the areas from which the UDA and other loyalist paramilitary organisations drew their strength, there is widespread alienation from the political process? I believe it is now incumbent on the devolved Administration in Northern Ireland to address that alienation and to find ways in which the vacuum, which has been welcomed but which was caused by the decommissioning to which I have referred, can be addressed. Does the Leader agree with me that that will be a priority for the devolved Administration?

Baroness Royall of Blaisdon: My Lords, I pay tribute to the noble and right reverend Lord for the extraordinary work that he has been doing on decommissioning. I certainly agree that the Executive and the Assembly have a huge role to play in ensuring that that alienation from the political system or the vacuum is filled not by violence but by proper political activities or proper engagement with the people of Northern Ireland. In taking this last step towards devolution, the Executive and Assembly can now focus on the issues of real importance to the people of Northern Ireland, such as jobs and housing, as well as political engagement. That will assist in ensuring that the vacuum is not filled by violence.

Baroness O'Loan: My Lords, I, too, welcome this agreement. It is important to place on record the fact that the agreement was made between two parties and that the other parties had no sight of it until after it was agreed. It is also important to say that it is an agreement to think about agreeing because it is contingent upon the workings of a number of working groups which will be established in the future. It is enormously important that this House recognises the significance of the appointment of a justice Minister in Northern Ireland and the method by which that justice Minister is appointed; it is not the product of effective gerrymandering.

Baroness Royall of Blaisdon: My Lords, I recognise the wise words of the noble Baroness and the fact that the agreement was reached ultimately by two parties. As I said earlier, we believe that the talks were open and inclusive. It was for other parties to be involved if they so wished. I fully agree with what the noble Baroness says about the justice Minister. That is a huge step forward.

Lord Brooke of Sutton Mandeville: My Lords, it is not widely known that General de Chastelain, before he became the Canadian Chief of Defence Staff, kept wicket for Fettes. In that capacity he has been a perfectly admirable longstop in the years since the Belfast agreement. What will happen to the international commission in the future?

Baroness Royall of Blaisdon: My Lords, that is a very good and pertinent question to which I do not have the answer. I shall give the noble Lord an answer in writing.

Lord Maginnis of Drumglass: My Lords, I apologise to the noble Baroness for not being here on time. That was due to a transport delay.
	Having worked shoulder to shoulder with the noble Lord, Lord Trimble, in 1998, I am hugely disappointed to see this arrangement-it is certainly not an agreement-impacting on the future of Northern Ireland and to find that, again and again, the St. Andrews arrangement has been used to divert and distort what we worked very hard to achieve in 1998. There is the idea that somehow we can cut a Minister of Justice out of the hedge, rather than use the processes that were agreed in 1998; there is the idea that the leader of the SDLP and the leader of my party can somehow be instructed to chair a working group without ever having been involved, at any stage, in the Hillsborough talks-not even having seen a piece of paper with a proposal on it. There is the fact that the piece of paper that we talk about today is totally anonymous-it does not have a signature or a name. This is not an agreement-it is an insult to the people of Northern Ireland and I feel it is an insult to Members of this House to have it sold as an agreement. Nothing is a greater insult to this House.
	Does the Secretary of State for Northern Ireland know something we do not know about the processes that were put in place to examine certain allegations against the First Minister that were carried on a BBC programme? This effusive response by the Secretary of State is not acceptable.

Baroness Royall of Blaisdon: My Lords, I recognise the deep concern that the noble Lord expresses but I have to refute some of the arguments he made. This was not an agreement made by two Governments; it was an agreement made by two parties-the party of the First Minister and the party of the Deputy First Minister-in the Northern Ireland Assembly. It is regrettable that the Ulster Unionist Party was absent for a large part of the time but, as I understand it, that was a matter for the Ulster Unionist Party itself. I should also say that the leader of the Ulster Unionist Party was not instructed to chair the working party: he has been invited to chair the working party. We very much hope that he will take up that invitation. In repeating this Statement I am not trying to sell the agreement; I am trying to inform noble Lords of the agreement and of where we are vis-à-vis the agreement, which has support on most Benches in this House.
	Finally, on the position of the Justice Minister, the Assembly decided late last year in the Bill to create a department of justice that, given the special sensitivities of the post, the appointment of the Justice Minister should be made by a cross-community vote in the Assembly. This is nothing to do with the agreement going behind or beyond the St Andrews agreement. It is following on a decision made by the Assembly last year.

Digital Economy Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments

Committee (7th Day)

Clause 31 : Renewal of national radio licences
	Debate on whether Clause 31 should stand part of the Bill.

Lord Clement-Jones: My Lords, before I propose that the clause not stand part, I must apologise. As a result of the way in which the business of the House has been organised today, I shall not be able to be here for about two hours of the Committee's proceedings. I very much regret that, as many important matters remain to be debated. However, since the business was switched at extremely short notice-I hope that the Whips are whipped for it in some future incarnation-

Lord Davies of Oldham: Oh!

Lord Clement-Jones: I am of course not referring to the noble Lord, Lord Davies. Moving this business from Tuesday to Monday at very short notice is not a happy situation. I therefore hope that Ministers will give full and frank responses as if I were present. I am very grateful to my noble friend Lord Addington, who has kindly agreed to step into the breach when I am not able to put the arguments.
	I propose that Clause 31 should not stand part. Under this clause, the national analogue radio stations talkSPORT, Classic FM and Absolute Radio are receiving valuable seven-year extensions to their licences. In exchange, the existing licensees have been asked to give their support to an early switchover, with the proposed 2015 date coming much earlier than that recommended by the Government's 2008 Digital Radio Working Group.
	However, there is a view among some operators that extensions to these licences are not worth the damage to radio of a digital switchover policy which assumes an unrealistic timetable for digital switchover and which fails to provide solutions that allow all local radio stations to move to digital. They do not accept that as a reasonable quid pro quo for an early switchover. They believe, on the contrary, that the industry's engagement with the digital radio switchover proposal has been distorted by its interest in licence extensions which are essentially to do with the attractiveness of the current analogue model for radio rather than the proposed digital model. Their view is that Clause 31 will deprive the Government of revenue due from re-auctioning the licences for these national analogue stations. However, the Government have failed to publish an assessment of how much revenue will be lost to the Treasury under this approach.
	The Government need to justify the advantage of the clause against the background of the following factors: that the sums lost to the Treasury will clearly amount to tens of millions of pounds over the lifetime of the extended licences; and the lack of evidence about whether digital investment by the holders of these licences will continue without the extensions. On the face of it, many are already contractually or otherwise committed to digital even without this.

Lord Howard of Rising: My Lords, although I share a number of the noble Lord's concerns, I do not think that removing the clause would be helpful. It is a facilitating clause that enables the move to switchover at a later date, and it does not set in stone when the switchover will take place or indeed that it must happen. It is more important that the Secretary of State considers a range of issues before nominating a switchover date than that the process in its entirety is stopped. I believe that the level of digital radio listening should be much higher than the Government have suggested. It would also be very much better if the fact that the FM spectrum will remain in use for local and community radio stations was on the face of the Bill. More progress should be made in creating a help scheme and a recycling scheme. We should be focusing on these issues rather than on an attempt to derail the digital switchover process completely.

The Lord Bishop of Manchester: My Lords, I recall that last week the noble Lord, Lord Clement-Jones, and I supported each other's amendments, but sadly that relationship is about to be broken albeit, I hope, temporarily. To allow the Bill to pass without this clause would pose a real problem for the entire digital radio project.
	The three commercial stations currently granted national analogue licences cater for a broad range of tastes, from Beethoven and Brahms to Bon Jovi, via the latest soccer score from Bolton Wanderers. Their collective appeal has been vital to encouraging digital take-up by listeners, with around a fifth of their current audiences now listening via a digital platform. To disrupt that migration would be rather unwise.
	Readvertising these national licences with just a few years to run before we expect to switch off the service seems to be sending the wrong signal to both the industry and to listeners. It seems to suggest that we are not fully committed to digital as the future, that we doubt whether we will be in a position to switchover the bulk of national stations in seven years, and that we can expend less energy on the steps that are undoubtedly still needed to get listeners to switch to digital, especially through pushing down the cost of DAB radio sets and through getting DAB into more cars as standard. I do not think that any of those things are the right course.
	If, as I understand it, the message from the legislature to the private sector is to be, "We want you to invest in this new technology, market it to your listeners and encourage them to adopt the new listening platforms", surely we cannot keep expecting these companies to keep on writing blank cheques.
	We all appreciate that digital platforms are still in their relatively early days. It has to be remembered that not one digital radio station has yet posted a profit. For their pioneering endeavours, they deserve the stability that this reprieve offers them. One does not often hear pleas for breaks for business from these Benches, but this is a case of tidying up the licensing regime to make it serve the purposes of the digital age.

Lord Eatwell: My Lords, I declare an interest as chair of the consumer panel of Classic FM. This panel is entirely independent of the company. It is devoted to maintaining the standards of Classic FM and the widespread broadcasting of classical music by the independent sector. If this clause does not stand part of the Bill, your Lordships should be aware that the future of Classic FM will be severely compromised because it is a requirement of existing law that the analogue licences are auctioned. As at present conceived, analogue licences do not have a clear format specification. There is not a licence for classical music. There is simply a licence for non-speech, which is the licence held by Classic FM.
	If these national stations were to be auctioned in the near future, I would be willing to bet the noble Lord who is opposing that Clause 31 shall stand part of the Bill at least a bottle of claret that this licence would be secured by a pop music station, and that Classic FM would disappear. I wonder whether the noble Lord has taken into account that possibility in his proposal.

Lord Young of Norwood Green: My Lords, key to supporting the drive to digital is to encourage and to allow broadcasters to invest in their digital futures. Experience shows that licence renewals, which are linked to the provision of a digital service, are a key incentive. At a time when the Government are asking the industry to contribute to a focused and intense drive towards digital, we believe that it would be wrong to remove this incentive.
	Clause 31, alongside Clause 32, would allow Ofcom to grant a further renewal period of up to seven years to analogue licence holders who also provide a digital service. Clause 31 relates specifically to the national analogue licences, although the rationale for the decision for extending the renewal is identical for both national and local licences.
	I do not want to take up too much time because noble Lords who have contributed to this debate have put many of the arguments excellently. The noble Lord, Lord Howard, talked about the necessity to maintain the clause. The right reverend Prelate displayed a very catholic-I hope he does not mind me using the word-taste in music from Beethoven to Bon Jovi, which I liked. In his analysis of the need for Clause 31, he is absolutely right. As he said, we cannot expect companies to carry on writing blank cheques. We need to give them an incentive. My noble friend Lord Eatwell's analysis of Classic FM was exceedingly apposite. We believe that this clause is essential for the reasons stated by a number of noble Lords. In those circumstances, I support the Motion that this clause stands part of the Bill.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. I also thank other noble Lords for contributing to the debate with some fairly bloodcurdling prospects. However, I do not think that the Minister has answered the question about why these extensions are required. I put this proposal somewhat as a devil's advocate. By and large, I believe that the majority of the radio industry is behind the scheme as put forward by the Government, but there is a significant minority of interest which is not. That is why I put forward the clause stand part debate. But if I was in their shoes, listening to what the Minister had to say, I would consider that his arguments were entirely circular and that the Government have done this because they needed to and that this was the best way forward. I do not think that any real forensic argument has been put forward by the Minister. I could probably put forward rather better arguments than the Minister has. I certainly could have put my finger on areas where investment is needed, since I have been briefed by some of the major radio players.
	The Minister has been extremely half-hearted in responding. This is the one bit of this Bill which is the Government's opportunity to set out their stall in terms of their digital radio policy, other than the amendments we have already dealt with. We had quite a useful debate on our last Committee day, but the Minister has not really answered the questions in a robust way. Certainly, he has not set out the stall for the Government's policy in terms of the extensions of these national analogue radio stations. We are talking about digital radio switchover. What is it about these extensions that will make those radio stations invest more when they migrate to digital? That is what it is all about.
	The Minister did not even attempt to talk about the amount of money that the Treasury would forgo. Some estimates have put that as high as £73 million, which is a large amount of money. I do not think that the Minister dealt with that either. The Minister has been extremely disappointing. I do not think that that minority of radio stations will be particularly happy to hear the Minister's lack of engagement with their arguments. It is almost as if he has taken a view that only a minority of radio stations is concerned, that the bulk of the radio industry is quite happy and that therefore that minority will be overridden without so much as a buy your leave.
	That is an unfortunate position to be in. This House, above all, is about rational debate and about putting forward the arguments. To be frank, in previous amendments to this clause, the Minister put forward some useful points-he certainly did in response to some of mine-but when I have tried to elicit an overarching policy, he has been lacking and I have been somewhat disappointed.
	Clause 31 agreed.
	Clause 32 agreed.
	Amendment 241B not moved.
	Clauses 33 and 34 agreed.
	Clause 35 : Local radio multiplex services: frequency and licensed area
	Amendment 241C
	 Moved by Baroness Howe of Idlicote
	241C: Clause 35, page 39, line 3, leave out "local"

Baroness Howe of Idlicote: My Lords, this amendment, which relates to the provisions for digital radio, seeks to allow for the efficient use of the radio spectrum and for a potential increase in radio listening choice for the people of Northern Ireland. Although national BBC services are available via digital radio in all four parts of the United Kingdom, the national commercial multiplex is unavailable in Northern Ireland. The reasons for that are historical and technical, and relate to how the same frequencies were used in the Republic of Ireland. The result is that stations, including Absolute Radio, Planet Rock, BFBS radio and Premier Christian Radio, cannot be heard digitally in Northern Ireland. There is some hope that the spectrum position will change. However, as currently worded, even if that spectrum were to become available, Ofcom would not have the powers to allow it to be used by the national commercial multiplex.
	That is clearly an anomaly and, I suspect, an oversight. It would result in the inefficient use of spectrum and an artificial restriction on the radio-listening choice for some citizens. This amendment seeks to correct the situation and, without obliging, would enable Ofcom to increase the coverage of the national commercial multiplex. Were this to become technically possible, Ofcom would follow the process already proposed for similar expansion of local digital radio or multiplexes using the framework already in the Bill. This amendment, while modest and not contentious, will have benefits for the people of Northern Ireland and clearly will be welcomed by the radio industry, so I hope that the Government will be prepared to accept it. I beg to move.

Lord Young of Norwood Green: My Lords, this amendment would allow Ofcom to vary the frequency or licensed area of national, as well as local, radio multiplex licences. On the face of it, this is not an unreasonable change and would potentially enable the national commercial radio multiplex to extend its coverage to Northern Ireland. However, Clause 35 was structured specifically with reference to local radio multiplexes so as to allow them to merge or be extended in order to close the gaps in local radio multiplex coverage in the UK not currently served by DAB. Simply removing the word "local" from the text may not be the best way to achieve the desired result. Consideration needs to be given to what variation powers Ofcom should have with regard to national multiplex licences and to the basis on which such powers should be exercised. We have some sympathy with what the noble Baroness is trying to achieve and the Government will consider this issue before Report. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Howe of Idlicote: My Lords, I am pleased to hear that, even if this amendment is not entirely appropriate according to the Minister, serious consideration is going to be given to how this can be made possible. Under those circumstances, I beg leave to withdraw.
	Amendment 241C withdrawn.
	Amendments 241D to 241F not moved.
	Clause 35 agreed.
	Clause 36 : Renewal of radio multiplex licences
	Debate on whether Clause 36 should stand part of the Bill.

Lord Clement-Jones: My Lords, Clause 36 deals with the renewal of radio multiplex licences and it inserts a new Section 58A after Section 58 of the Broadcasting Act 1996. The House of Lords Delegated Powers and Regulatory Reform Committee, which we always listen to with some respect, had some interesting words to say about this clause:
	"It is impossible to tell from the Bill whether the policy is that the licences should or should not be renewable at all, let alone for what period or on what grounds. Indeed, paragraph 56 of the memorandum candidly admits that the relevant policy decision has yet to be made. We draw attention to the skeletal nature of the power in clause 36, to enable the House to examine it further and determine whether it is justifiable in this context".
	I am merely a humble hand maiden of this House in tabling this clause stand part debate, and I hope that the Minister can give us further enlightenment.

Lord Young of Norwood Green: I have never had to respond to a hand maiden before in this House. I am still wrestling with that analogy. The Government stated in the Digital Britain White Paper that we would work with the industry to agree a plan to build out the DAB infrastructure to current FM coverage. We recognise the need to limit as much as possible the impact of such build-out on radio stations. One way this can be achieved is to allow multiplex operators to spread the cost of the investment in the new infrastructure by extending the period of their licence. We have suggested that licences could be extended up to 2030.
	The renewal of multiplex licences as a means to support digital radio was first introduced in the Broadcasting Act 1996. However, these renewal powers only apply to licences which were granted within 10 years of the 1996 Act coming into force. Therefore, there are a number of multiplex licences which are currently not eligible for a renewal. If renewals are to provide a real support to the build-out of DAB coverage to FM levels, they need the flexibility to achieve three objectives: first, to allow the extension of the licence period for those licences which are already eligible for, and in some cases have already been awarded, a renewal under the existing terms; secondly, to allow the renewal to apply to all multiplex licences, including those not currently eligible within the existing provisions; and thirdly, to ensure that any further renewals are awarded with conditions which link them to the progress to digital radio switchover, and more specifically to an agreed build-out plan and timetable.
	The link to a DAB coverage plan for switchover, which is likely to take a year to agree, is why we believe these powers are most appropriately applied via an affirmative order. I note concerns about the breadth of the order-making powers and I hope that I have satisfied noble Lords that they are justified because of the range of changes needed to implement this policy.

Lord Clement-Jones: I thank the Minister for that brief but-I hope to discover on reading Hansard-informative statement. As somebody who is not fully conversant with the radio multiplex licence variations, that was not the clearest possible answer I could have asked for. I hope that it will make sense on further consideration. It seemed to tell me that the Government need the maximum possible flexibility without having determined exactly which licences require extension. I am not sure that takes us a great deal further than what the House of Lords Delegated Powers and Regulatory Reform Committee said, but perhaps, as I say, on reading Hansard it will all become blindingly obvious.
	Clause 36 agreed.
	Clause 37 agreed.
	Clause 38 : Payment for licences
	Debate on whether Clause 38 should stand part of the Bill.

Lord Clement-Jones: My Lords, I feel somewhat like the Ancient Mariner at this part of the Bill. I am hoping that the Minister will give me a better reply than he has to previous clause stand part debates. The purpose behind this clause stand part debate is to ensure that the Government put on the record their spectrum policy to deliver 4G mobile telecoms and set out their key objectives. Consultations are currently taking place on the report by the Independent Spectrum Broker, Kip Meek. He clearly has tried to reconcile a number of interests within the confines of his brief from Government. A key assumption underlying his conclusions was that there is adequate competition in the mobile market. Are the ISB's conclusions still valid now in the light of the reduction in the number of mobile operators through the merger of T-Mobile and Orange? The Government have acknowledged this to a degree in their extension of the consultation period.
	Will there be an adequate portfolio of spectrum between the various competitors as a result of an auction process for the 800 megahertz freed up by analogue TV switchover-the so-called digital dividend-and the currently unused 2.6 gigahertz spectrum? This is one of the key questions. Will the proposals really have the maximum possible effect in terms of promoting competition in the mobile sector, as claimed by the impact assessment? Why is there no proposed special provision for new entrants as there was when the 2.1 gigahertz spectrum was auctioned? Does this not mean that the auction process is essentially a closed one, confined to existing operators? Why auction the 800 megahertz at the same time as the 2.6 gigahertz? Why not auction the former before the 800 megahertz is freed up from digital TV switchover? Why deal with our spectrum wholly separately from the process on the continent? Should we not be looking at this on a pan-European basis?
	Are the emergency channels properly dealt with? Will there be adequate free spectrum for the Olympics, as the Government guaranteed in their bid? Save Our Sound highlighted the problems faced by the programme-making and special events sector, where a whole range of wireless radio microphones and similar equipment will be rendered obsolete by the auction of the 800 megahertz spectrum. The Government made reference to the issue in the Digital Britain White Paper, but what concrete proposals are there now by Government to meet their costs of enforced migration from 800 megahertz, which will add up to tens of millions of pounds? What justification is there to extend the 2.1 gigahertz 3G licences? Is that really necessary to stimulate further investment? Why have the expected financial benefits not yet been quantified in the impact assessment for the Bill? Will the annual licence fee, the administrative incentive pricing arrangement, be charged and will those charges reflect the true value of the use of the spectrum after 2021? What assurances will there be that the spectrum-trading model envisaged will actually work, when it has not worked so far?
	What the Government propose is complicated, but some want to unpick it. BT, for example, may take legal action via judicial review. What view have the Government taken on its chances of success? The Government need to articulate very clearly why their proposals are necessary to deliver next-generation mobile and why the provisions in Clause 38 are required to implement them.

Lord Young of Norwood Green: My Lords, Clause 38 is intended to support the Government's proposals to achieve the spectrum modernisation programme set out in the Digital Britain report. I am having trouble with the noble Lord's transformation from handmaiden to ancient mariner; that is a terrible ageing process in the space of a few minutes.
	The proposals, recommended by the independent spectrum broker, have been developed with the objective of enabling the early release of significant amounts of new spectrum into the market, offering the opportunity for existing operators and new entrants to acquire sufficient spectrum holdings that will allow them to deploy next-generation wireless networks, delivering high-speed mobile broadband services to businesses and consumers. An example of the licences that could be affected by the changes enabled by this clause are 3G licences which were auctioned in 2000 and are due to expire in 2021. The Government propose to direct Ofcom to make these licences indefinite, but that annual licence charges will be applied from 2021. The Government believe that this is an appropriate step to take.
	Further investment is required in 3G networks, but with the licences due to expire in 2021, operators face a difficult decision at a time when capital expenditure budgets are under pressure. By making the licences indefinite, the operators can invest with greater certainty and confidence to the benefit of consumers and businesses alike.
	Some have argued that we are giving these licences away. This is not the case. The intention is to apply annual licence fees to these licences from 2021, which will reflect full market value. The amount of the charges will be set by Ofcom at the appropriate time. Of course, they will be required to exploit the spectrum that they have efficiently and effectively; at the moment, we have only one remedy-to remove the licence. We think that this gives us more flexibility.
	On the specific question of the Olympics, I can guarantee that a suitable spectrum has been identified and will be available for the Olympics. I am pretty sure that the same guarantee could be assured for emergency services as well.

Lord Mackay of Clashfern: The noble Lord, Lord Clement-Jones, mentioned BT being somewhat upset about these arrangements and threatening judicial review. Has the Minister considered whether the Bill is as robust as it can be in relation to that threat?

Lord Young of Norwood Green: We were certainly aware of BT's intention. If BT wishes to challenge it, we believe that it is a fair and effective process. I understand from the affirmative nod from the Box that the answer is that, yes, it is robust.

Lord Clement-Jones: My Lords, I thank the Minister for that reply, but he barely touched the surface of the policy. I hope that he has read the independent spectrum progress report; it is the subject of consultation, which has been extended because of the Government's concern about the merger of Orange and T-Mobile affecting the competitive situation. I do not think that the Minister used the word "competition" in his answer to me. What is the Government's view about the new element introduced by the merger of T-Mobile and Orange? Has it affected the spectrum broker's recommendations? Do the Government still believe that their package is viable in the face of going down from five operators to four?

Lord Young of Norwood Green: Whether the joint venture between Orange and T-Mobile takes place is a matter for the relevant competition authorities. Whatever decision they arrive at will need to be accommodated within our proposals for the spectrum modernisation programme.

Lord Clement-Jones: My Lords, that is an extraordinary answer. The Government are making policy on the basis of certain assumptions. The Minister is telling me that that is in the hands of the competition authority; of course it is, in terms of the commercial practices of those particular mobile operators. However, I asked whether the Government's assumption about the level of competition in the mobile sector still stood, so that there would be a proper portfolio of spectrum available to keep competition within the mobile sector. The auctioning of the 800 megahertz and 2.6 gigahertz is going to have a considerable impact on the mobile operators' ability to deliver fourth-generation mobile.

Lord Young of Norwood Green: In the opening part of my contribution I did specifically refer to the point that the noble Lord made when I said that the proposals recommended by the independent spectrum broker have been developed with the objective of enabling the early release of significant amounts of new spectrum into the market, offering the opportunity for existing operators and new entrants to acquire sufficient spectrum holdings that will allow them to deploy next-generation wireless networks, delivering high-speed mobile broadband services to businesses and consumers. I specifically addressed the point about new entrants and competition, and I wish that the noble Lord would perhaps pay a little more attention to what I am saying rather than criticise me for not giving answers.

Lord Clement-Jones: My Lords, I was listening very carefully and I took note of exactly what the noble Lord said, but he did not say that five competitors moving down to four made any difference to the Government's proposals. That was the point that I was making. Of course, he said that that was the Government's belief, but he did not say whether the Government had changed their view as a result of changes in the number of mobile operators. The other aspect was the Save Our Sound campaign. There have been assurances from the Government, but it seems that there is nothing concrete yet to help it in terms of replacing all the equipment which currently uses the 800 megahertz spectrum, which it will have to deal with. I was listening carefully to what the Minister had to say-but again, if I have misinterpreted the Minister, I apologise. I think that I have been listening pretty carefully, and I certainly did not hear the Minister say anything of that sort or anything about whether spectrum should be dealt with on a European-wide basis. That seems a rather important point. I do not know whether the Minister has any crumbs of comfort or scraps of paper or anything else that he cares to deliver in these circumstances. He shakes his head, so clearly not. We shall just have to wait until Report for further enlightenment.
	Clause 38 agreed.
	Clause 39 : Enforcement of licence terms etc
	Amendment 242
	 Moved by Lord Young of Norwood Green
	242: Clause 39, page 42, line 38, at end insert-
	"( ) In section 400 of the Communications Act 2003 (destination of licence fees and penalties), in subsection (1)(d), after "42" insert "or 43A"."

Lord Young of Norwood Green: This government amendment rectifies an omission in the Bill.
	Clause 39 of the Bill inserts proposed new Section 43A into the Communications Act 2003, giving Ofcom a new power to impose financial penalties in certain circumstances. This technical amendment adds a reference to the penalties imposed under new Section 43A to Section 400 of the Communications Act 2003. Section 400 requires specified licence fees and penalties paid by operators to be paid into the Consolidated Fund. This amendment therefore ensures that any such penalties are dealt with in a consistent fashion to other amounts and penalties paid to Ofcom. I beg to move.
	Amendment 242 agreed.
	Clause 39, as amended, agreed.
	Amendment 243
	 Moved by Lord Lucas
	243: After Clause 39, insert the following new Clause-
	"Electromagnetic spectrum: access for European emergency service
	(1) OFCOM must set aside a spectrum band or bands amounting to not less than 15 MHz in total and lying within that part of the spectrum that is expected, under Council recommendation 10141/09 or subsequent proposals, to be agreed upon for the extension of European emergency service access.
	(2) OFCOM may not release any of the spectrum so set aside unless it sets aside equivalent spectrum, or determines after due consultation that the emergency services have no reasonable likelihood of requiring the spectrum to be released."

Lord Lucas: My Lords, this amendment picks up a point raised minutes earlier by the noble Lord, Lord Clement-Jones, and not replied to by the Minister: what are we doing to protect the interests of the emergency services, and our national interests, when it comes to allocating spectrum for them? This has two prongs to its attack.
	It is clear that the emergency services will, over time, require substantial additional spectrum. I have put in 15 megahertz here just as an illustration of the magnitude of the requirement. Although the current emergency services systems are generally operating well, if near capacity-there have been points in recent times when that has got very close-they were designed 10 years ago. All of us, even those with parliamentary communication systems, are operating at a much more advanced level than the emergency services are able to.
	If, as I think is inevitable, we give the emergency services the ability to use streaming video-so that the situation on the ground could be immediately communicated to the centre by the constable on the beat, or so that that constable could see immediately the recipe required to free a person from an obstacle or deal with a situation, as would be common on commercial networks that have to deal with such situations-we will require substantial additional spectrum to handle it.
	If we are going to do that, there is great advantage in harmonising that spectrum across Europe. We achieved this with the current system, and greatly to our benefit. There have been two benefits. One is that because the system operates at common frequencies the kit is much less expensive. Secondly, by being an early adopter of the system, we have been able to take a very large share of the equipment manufacture market for the current system as it is spread out worldwide. It has been a great benefit to us in both those ways.
	We now appear to be in a situation where a harmonisation process is under way in Europe for future emergency services spectrum. The noble Lord, Lord West, has very sensibly signed up to it on behalf of the Home Office, but Ofcom is doing its best to derail it, because it thinks that it can sell the bit of spectrum that Europe is looking at for more money. That is an extremely short-sighted view. Ofcom may get a bit more money for it now, but it will cost us a great deal more in the future both in terms of the cost of our kit and in terms of lost markets.
	In this amendment, I am asking that this bit of the Government sign up as the other bit of the Government has. In other words, I ask that we are wholeheartedly part of the European co-operation on finding common spectrum for the next generation of emergency services kit, so that we benefit, or have a very good chance of benefiting, as we have from the current system. I beg to move.
	Amendment 244 (to Amendment 243)
	 Moved by Lord Clement-Jones
	244: After Clause 39, line 3, leave out "amounting to" and insert "commensurate with the requirements of the UK critical national infrastructure in addition to spectrum"

Lord Clement-Jones: My Lords, the noble Lord, Lord Lucas, has made some very useful points. I must confess that the reason why we tabled amendments to the noble Lord's amendment-which I am sure is fully formed and perfect-is lost in the mists of time. Nevertheless, a more general statement would be appropriate in the Bill, rather than something this specific about the actual use of parts of the spectrum; I suspect that was our motive in tabling these two amendments. They are all about the critical infrastructure.
	In debating the Bill, we need to consider the public benefit of reserving a small amount of radio spectrum for use by the critical infrastructure, which is crucial to our well-being, compared to the incremental benefit of using this spectrum to provide more entertainment services and marginally quicker broadband communications.
	Thirteen years ago, during the passage of the Wireless Telegraphy Act 1998, which introduced the concept of spectrum trading to the UK, the Government gave the assurance that,
	"it is not our intention that the introduction of spectrum pricing should affect the access of utilities to the radio spectrum that they require".-[Official Report, 8/7/97; col. 559.]
	Similar commitments have been made on subsequent occasions, and these should be honoured in the Bill to safeguard the operation of gas and electricity networks specifically.
	As we move to a more interconnected society based around communications technology, the interdependence of the underlying electricity networks and communications must not be overlooked. It is not in the consumer's or citizen's interest for the integrity of the electricity supply network to be compromised by the lack of resilient communications infrastructure.
	I have received a considerable number of briefings, all in language that I am sure the noble Lord, Lord Lucas, will understand, but I confess that I do not-particularly in terms of the emergency infrastructure. I hope the Government have taken all these matters into account, and that they can reply to say that they have done so. I beg to move.

Baroness Howe of Idlicote: My Lords, in listening to what noble Lords have said, I have been rather attracted by the arguments put forward, not least by the idea that we should perhaps go down the line advocated by the noble Lord, Lord Lucas, towards European spectrum.
	We all know that there are too many, if not vast, areas where reception is appalling, about which one is currently very concerned, and where the likelihood is that it will not be perfect for quite a while to come. We would be pretty worried about whether the emergency services, if needed in these areas, would be accessible via the facilities they have.
	I am certainly no more capable of understanding the technologies of this, but I hope that even though, as has been admitted, we may not have got it right, sufficient attention will be given to this point. Even during the cold weather we had recently, there were examples where the emergency services could not be accessed. This needs to be taken very seriously.

The Earl of Erroll: My Lords, I rise to support the amendment of the noble Lord, Lord Lucas, plus the amendments to it, because they are slightly different things. Taken as a package, the whole thing, though not essential, would be extremely useful for the UK and possibly the world.
	Nowadays, in a global society where more things are happening and there is more international assistance, it seems silly that teams who go abroad should not be able to interoperate to a certain extent. If we operate on completely different frequencies, the kit has no hope of interoperating. It might be possible-I do not know-to get stuff to interoperate if we, for instance, dispatched a team to Haiti. If other international teams were there, we might find that we could, whereas the kit will not interoperate if we are working on completely different frequencies. Therefore the idea of organising this at a European level, for a start, is extremely sensible.
	There has been quite a lot of debate on this around the scenes for the last year or so. When it has been raised at meetings with various people from the Civil Service, the general attitude has been, "Well, the emergency services have to bid for their spectrum like everyone else, and if that is wanted they will be given the budget to do so". What worries me is my suspicion that, with the current parlous state of the economy, they will not be given that budget. Because of a temporary crisis in our economy, we may well find ourselves regretting that in 10 or 15 years' time-or even at, say, the Olympics. If there were a disaster then, it would be far better if we were operating on the European frequency. If teams were there with similar equipment, we might find it easier to operate together.
	The point about the critical national infrastructure is that that is different. It would not be regarded as being for the emergency services. Again, however, it is important that they have spectrum allocated to them. More and more control systems-for power stations, for the grid and for other things-are running over radio frequencies. Those systems are not running down just wires or cables. We must make sure that those services have frequencies reserved for them that cannot be interfered with and that will not interfere with other transmissions. It should be dedicated to them. I therefore support all of these amendments.

Lord Young of Norwood Green: My Lords, the Government fully recognise the importance of access to spectrum for the emergency services. It is an essential tool, without which they would not be able to operate. The Government regard the safety and security of UK citizens as of paramount importance, and have consistently stated that spectrum management should pay due regard to that. The Government also note the additional amendments that would require spectrum to be set aside for critical national infrastructure.
	It is important that we take account of the context within which these amendments are proposed. Spectrum is a finite resource; although technology advances have allowed greater use of the available spectrum, rising demand means increasing pressure on a fixed supply. Against this background, the Government commissioned an independent audit of spectrum by Professor Martin Cave in 2004, from which one recommendation was that any new spectrum requirements from the public sector should be met through the market. He recognised that that might not be possible in certain circumstances, so recommended that a process be established to determine whether an administrative allocation should be made. Government departments and their agencies act within this framework. Determining future spectrum requirements should be treated in the same way as any other resource.
	I stress that the National Policing Improvement Agency is presently working on its future communications programme, part of which will address the emergency services' future spectrum needs. There is no way that those needs will be overlooked or that we will in any way undermine them. We will therefore be in a better position to determine what spectrum is required, and in what band, once that work has been completed and thoroughly assessed.
	The noble Lord, Lord Lucas, asked about Ofcom derailing. We certainly do not share that view. The noble Lord referred to Europe and to Council recommendation 10141/09. The recommendation states that when needed and justified, and taking account of national arrangements for distributing spectrum, member states should allocate additional frequencies at national level in a co-ordinated timeframe in co-operation with CEPT-the European Conference of Postal and Telecommunications Administrations. A working group has been established to look at possible spectrum requirements, and the UK will be fully involved. I note, however, that the recommendation clearly states that any requirement for spectrum should be based on an identified need and should be justified. The working group only recently met for the first time. How quickly it will carry out its tasks and what their outcome might be is unknown, so it is premature to determine at this stage any amount of spectrum that may or may not be required.
	I think that we have already given an assurance on the Olympics. In response to the noble Earl, Lord Erroll, we can see the difficulties of dealing on a European level, never mind a global level. If we are serious in trying to ensure that we address the needs of the Olympics, we have to be aware of the timescales for achieving this kind of operation. I am not dismissing the need to do that; it is the time that it will take. On critical national infrastructure, at present there is no certainty on what, if any, spectrum might be required. It would therefore be inappropriate and inefficient to set aside spectrum for that purpose.
	I repeat: the Government consider the safety and security of UK citizens-and, indeed, of the emergency services in executing their duties-to be of paramount importance. However, the Government's view is that established mechanisms exist for assessing and, if necessary, allocating spectrum for the emergency services' use. As I said, the National Policing Improvement Agency is already working on its future communications programme. I hope that, with those assurances, the noble Lord will feel capable of withdrawing the amendment.

Baroness Miller of Chilthorne Domer: Before my noble friend withdraws his amendment, I should say that I was very interested in what the Minister said about the National Policing Improvement Agency, which is of course for one emergency service. However, I draw his attention to the report on communication that has just come out from the Royal United Services Institute. It referred to the critical national infrastructure and said that communication between the emergency services is the issue as well.
	I think that the Minister was implying that because one emergency service sees the situation as adequate, it is adequate. However, I strongly refer him to that report from RUSI. It makes a strong plea for a vastly improved situation between the emergency services and, indeed, with other authorities such as local authorities. I apologise for not having contributed to the debate before the Minister replied, but I had not realised how relevant reading the RUSI report would prove to be.

Lord Young of Norwood Green: Perhaps I may reassure the noble Baroness that communications between the emergency services will be covered; I am getting an affirmative nod from the Box on that. If we can give any more explicit information on that we will communicate it in writing, because I share that point of view. We believe that it is covered and we will give her the detail on that. I agree with her that there would not be much point in the police examining their requirements if they did not also take into account the need to communicate with the fire and ambulance services and, perhaps in some circumstances, with local authorities, in cases of flooding or whatever. I take her the point. We think it is covered, but we will be a bit more explicit in writing.

The Earl of Erroll: Unfortunately, such large departments very often do not necessarily look, in the remit of their reports, at all the issues regarding interoperability with the other emergency services et cetera. That was a police report and was therefore unlikely to try to take into account issues between, say, the fire and ambulance services and other such matters. I would have thought that, on the precautionary principle, it would be safer to reserve some of that spectrum and auction it later than to include it in the hotchpotch at the beginning. Once it has gone, it will be difficult to get it back. I would therefore think that it is much safer to hang onto it. Then, if the European ideal falls through, it can be auctioned later.

Lord Young of Norwood Green: My Lords, I have already given assurances that the emergency services are working together and, as I said, we will give further details. We do not believe that reserving spectrum on an unidentified basis would be the right thing to do. We have always ensured that we have sufficient spectrum for the emergency services. That is still our intention and, as I said, we are involved in the working party in Europe. We believe that we have the necessary precautions and the right procedures to ensure that the emergency services are available to operate whatever requirements there may be. Once again, I hope that, with those assurances, the noble Lord will feel capable of withdrawing the amendment.

Lord Clement-Jones: My Lords, I, for one-not being endowed with the technological knowledge that the noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, clearly have-was strangely reassured by what the Minister said. The fact that he said we are doing this in conjunction with our European neighbours, I found doubly reassuring-a reassurance that he was not able to give me about the use of the rest of the spectrum. I do not know why he could not give me that assurance in previous answers. That we are making sure that the emergency spectrum is dealt with on a common basis with our European neighbours seems to be a good thing and is something that we should pursue perhaps in other areas of the use of spectrum.
	I am not quite sure what the procedure is. I think that I should withdraw my amendment before the noble Lord, Lord Lucas, withdraws his, and so I shall do so.
	Amendment 244 withdrawn.

Lord Lucas: My Lords, the noble Lord cannot withdraw my amendment. He can only withdraw his amendment to my amendment.

Lord Geddes: I heard the noble Lord withdraw his amendment, not yours. Amendment 244 has been withdrawn.
	Amendment 245 not moved.

Lord Lucas: I am very sorry, Lord Chairman.
	I was carefully parsing what the Minister said. I am of course comforted by what he said about the priority given to the needs of the emergency services. He said that we are involved with Europe. Yes, I know that we are involved in Europe. I was taken to task quite severely by Ofcom for saying that we were not. We are just not co-operating. We are not doing our best to reach a resolution on this. It is going back to the days I remember from my early engagement in politics under different management. There is a great difference between being involved in discussion and working to bring the discussion to a fruitful conclusion.
	I would very much like to know that the Government are committed to the idea of identifying common spectrum that the emergency services might use in the future. It seems to be a very important concept with a lot of benefits for us. I would very much like to hear the Government say that, rather than just getting involved in discussions which-looking at past discussions on this subject and the contributions made to it from the direction of Ofcom-have been singularly unconstructive. It seems to be a piece of co-operation which we should be encouraging. If the noble Lord cannot reply to me now, I would very much like to have it in writing that we are actively seeking to get towards the agreed goal of a common spectrum allocation for future use by the emergency services.
	I do not disapprove at all of the basis that the Government have laid out regarding how the emergency services and others should acquire spectrum in essentially a competitive situation where they have to justify their use of the spectrum. We have been terribly profligate with it in the past. The Ministry of Defence still sits on about a quarter of the entire spectrum, which is a little excessive to say the least. What matters here is timing. The police will certainly develop a strategy. However, there is no way that this Government, or any other Government, will allow them a budget for the next three, four or five years to put in a new system or to begin work on a new system. We will come through a period where public authorities will to have to be extremely careful about their budget.
	In that period, under the rubric set out by this Government, the key bits of spectrum will have been flogged off to mobile telephone companies. That is the problem which I seek to address in this amendment. It is not about the principles of the way that the Government are going at it; it is about timing. Because the Government are waiting for things to happen that necessarily cannot happen for five or 10 years before they will allocate spectrum to the emergency services, the other provisions of the Bill will result in the key bits of spectrum-the bits which would have worked on a European or an international basis-having already been allocated to other services. That is what I seek to avoid.
	I do not seek some unjustified allocation of spectrum. I am advocating that we should be properly careful to make sure that a longer term objective-a five or 10-year objective-is not sacrificed in the cause of a more immediate gain. I have not had the answer that I am looking for on that. I suspect that I shall need to return to this at a later stage of the Bill. For now, however, I will withdraw the amendment.
	Things were going rather fast but I see that we have comfortably gone back to the old pace of 20-minute groupings on this Bill. I shall absent myself from the next section, not least because my noble friend's amendment comes rather too close to my own school days for me to want to sit around and listen to it. I beg leave to withdraw the amendment.
	Amendment 243 withdrawn.
	Clause 40 : Classification of video games etc
	Amendment 246
	 Moved by Lord De Mauley
	246: Clause 40, page 43, line 9, at end insert-
	"( ) In subsection (2)-
	(a) in paragraph (b), for "mutilation or torture of, or other acts of gross" substitute "graphic";
	(b) in paragraph (c), after "organs" insert "anus, breasts or buttocks";
	(c) in paragraph (d)-
	(i) after "offences" insert-
	"(e) dangerous behaviour;
	(f) racist, homophobic or other discriminatory language";
	(ii) after "paragraph (b)" insert ", (e) or (f)"."

Lord De Mauley: My Lords, I rise to move Amendment 246. This seeks to plug a loophole that the British Board of Film Classification and others feel remains in the legislation connected to the exemption awarded to certain video material. Indeed, I see that the names that have been added to the amendment are from across the political spectrum.
	This exemption, set out in Section 2 of the Video Recordings Act 1984, to which Clause 40 relates, allows works to be exempted from classification if they are designed for educational purposes or are concerned with sport, religion or music, and do not depict, to a significant extent-and I paraphrase-sexual activity or gross violence. This threshold is very high, significantly higher than the threshold in non-exempted work. For example, it allows unsimulated, strong, bloody violence and the after effects of self-harm. It also includes topless lap-dancing, which is an activity the Government viewed as being equivalent to explicitly pornographic videos dealt with in the Policing and Crime Act 2009.
	We accept that there will always be a grey area in matters such as this. However, when many in the industry are voluntarily submitting exempted works for classification because they consider their material unsuitable for under-12s-even though it does not reach the threshold-there clearly is a problem. The Government appear to consider that there is sufficient legislation for using enforcement officers against such material, but we hear a different story from those same officers and agencies. The Government have also commented that the amendment would increase the regulatory burden. I cannot understand that argument. Certainly, more works might be subject to classification, but every individual work has to be assessed against a single threshold as it is, and that is not changing.
	The Government also pray in aid the technical standards and regulations directive and the three-month consultation period. After our debates on Clause 17, I find that argument astounding. We would be more than happy to help draft a very precise power for the Secretary of State to take steps to ensure that the threshold for exempted video works is brought into step with that for non-exempted works.
	Finally, let me briefly address the more specific arguments against my amendment. I appreciate that the wording is not sufficiently precise; the nudity must be more closely linked with sexual behaviour. The discriminatory behaviour needs to be more precisely defined, and so on.
	However, the intention of my amendment is clear. We feel that the differences between exempted and non-exempted classes of video work are no longer sufficiently significant and that steps must be taken to ensure that any loophole that allows unsuitable material to be completely unclassified is closed. I beg to move.

Baroness Howe of Idlicote: My Lords, as the noble Lord, Lord De Mauley, has said, I have added my name to this amendment. I am equally pleased that it has secured support from all round the Chamber. Your Lordships may recall that it is an issue which I first raised at Second Reading following a rather gruesome viewing of some of the material that is available on the high street totally exempt from classification.
	As has already been stated, the amendment seeks to update the current Video Recordings Act which currently allows too wide an exemption for music, sports and documentary videos. The exemption may have been appropriate in 1984 but appears out of date and naïve now. Most of us would expect boundaries to have been pushed to their absolute limits, and that is what has happened. The standards in the current Act relating to gross violence and actual sexual activity are way too high for successful prosecutions to take place, as the noble Lord said. I think the Minister in the other place suggested that prosecutions can already take place under the VRA. Indeed they can, but they rarely do so simply because the standard is set too high.
	The music and sports videos that a number of us have seen do not contain anything as strong as gross violence or actual sexual activity, but do contain graphic violence such as close-up hits to the head, with commentary glorifying the action and plenty of blood. Like the noble Lord, Lord De Mauley, I have seen music videos which contain no actual sex but feature topless dancing. This is not something to which children should have access and, most importantly, it is not something that parents would expect children to have access to. I suggest this is why both the BBFC and LACORS support this amendment. Trading standards officers want to be able to take action to prevent such works being sold to children.
	One of the things that worries me most about these exemptions is that the public are not really aware of them. Generally, consumers know the BBFC regime and expect it to protect them and their children. There is an assumption that such works will be classified and responsible members of the industry, generally members of the BVA, classify these works voluntarily. However, there is still a small but significant section who do not, and claim the exemption. This creates a parallel, unclassified market, which confuses consumers-the word "citizens" is very appropriate in this regard-still further. For example, would you not assume that a music video marked as exempt was less harmful than one that had voluntarily sought classification and been rated 15?
	I know from the meeting that I had with the Minister last week, for which I am very grateful, that there is recognition that some of these works should be regulated. Therefore, I hope that the Minister will consider either accepting this amendment or, at the very least, as the noble Lord, Lord De Mauley, suggested, proposing an alternative wording, as the Bill represents an ideal opportunity to plug an obvious loophole.

Lord Monson: My Lords, I have no objection at all to the purpose of this amendment but I quibble with some of the wording. As anyone with the slightest knowledge of Greek will be aware-Heaven knows, my Greek is sketchy in the extreme-"homophobia" does not mean a dislike of homosexuals. If it means anything at all, it means an aversion to one's own kind. The press love the words "homophobia" and "homophobic" because they are short and snappy and save them a lot of space when composing headlines. However, a bogus word like that should not appear in an Act of Parliament.

The Lord Bishop of Manchester: My Lords, as the noble Lord, Lord De Mauley, and the noble Baroness, Lady Howe, have already noted, this amendment has drawn support from all Benches and I add my broad welcome for it from this Bench.
	As I think we all agree, it is important to bring the most unacceptable content within the scope of statutory regulation and there is a need to update the law in this area. However, I take on point the valid point made by the noble Lord, Lord Monson, about the need to use language carefully and to remember what it means in its original context. Ironically, the readiness of responsible film makers and distributors to submit any borderline content to the regulator on a voluntary basis, as some are already doing-as the noble Baroness, Lady Howe, indicated-makes it more confusing for parents and other consumers, who simply may not realise that other similar content has not been past by any sort of regulator or classification system. This move will inevitably increase the number of videos that have to go through the video works authority for classification. However, if that increases trust in the system, and therefore its effectiveness in protecting young people from exposure to inappropriate material, I for one think that is a price well worth paying.
	That said, I have concerns that the proposed new paragraph (f) pertaining to discriminatory language could lead to some presumably unintended consequences for so-called comedy performances where there are references to religion, sexual orientation or gender issues. It might also mean that some video recordings of sermons or other evangelistic material would cease to be exempted works because, for example, theological views that were critical of other religions were expressed. Clearly, this would have to be assessed on a case-by-case basis and a judgment would have to be made on the age appropriateness of different types of content. However, on a point of principle, it would be a shame if free speech were curtailed when we already have a host of laws, which, of course, the church welcomes, on preventing the stirring up of hatred against certain groups. The guidance note prepared by the British Video Association in association with the BBFC as a draft framework for what sort of material would and would not become non-exempt if this amendment were accepted, does not immediately address that issue. Nevertheless, I am persuaded that the board would take a sensible view on this because its track record suggests that that would be the case.

Lord Addington: My Lords, I add the support of these Benches for the principle behind the amendment. I apologise for being the stand-in for my three colleagues at the moment. However, as my noble friend Lord Clement-Jones pointed out, last-minute changes of date occasionally lead to last-minute changes of personnel.
	If you start to pull these things apart and suggest that there might be something wrong, you never achieve anything because you always have to rely on somebody somewhere having common sense. As regards going back to the original Greek, I suggest that that way madness lies. We have to rely on good judgment at some point. We need to have a system whereby people have a rough idea what it is and we need to let people know what is going on. I suggest that the measure is a sensible way forward. If the wording is not perfect we can debate it as we are in Committee, but we should have a good long look at the principle behind this.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have spoken in this brief debate on this important issue. I am grateful for the manner in which the noble Lord, Lord De Mauley, presented his case. He indicated that he was not entirely sure about the drafting of the amendment. I shall trade on that a little as it reflects the difficulties we all face with regard to these issues. We recognise that this is a very significant line to draw, particularly given the need to protect children from potentially harmful material. The noble Baroness, Lady Howe, indicated her interest in this issue, which is long established in any case, when she spoke on Second Reading. We know of the position of the noble Lord, Lord Monson, with regard to these issues. I am grateful for his intervention in the debate. However, as the right reverend Prelate indicated, we have to be careful where we tread because we certainly do not want to inhibit free speech and the proper discourse in a free society of issues pertaining to fundamentally held belief systems and views.
	I find myself in a position where I fully understand the views that have been expressed and I have considerable sympathy with some of the principles which have been expressed. However, I emphasise that certain types of video content are exempt from classification. They include those that, when taken as a whole, are concerned with sport, music or religion and include works that are designed to inform, educate or instruct. On the whole, we all expect such works to enjoy freedom of expression, because their intent is clearly benign and for the good of society.
	When the Video Recordings Act was drawn up, it was felt that, although the vast majority of this content should be exempt, if any otherwise exempted video work contained certain elements, such as sexual activity, they should fall back within the scope of the Act, because we recognised the capacity for the giving of offence, and in particular we were concerned about children. The current criteria listed in Section 2 of the Video Recordings Act have been working well for the past 25 years. The right reverend Prelate testified to certain successes in those terms. The vast majority of exempted video works are innocuous, and we believe that the existing text is sufficient to maintain the balance of proportionate regulation-which is what we are seeking-in an admittedly difficult and sensitive area.
	The existing criteria mean that video recordings are not exempted if they contain material such as gross violence or depictions of sexual activity et cetera. The Government remain unconvinced that the issue extends beyond a handful of titles. I know that there are concerns about one or two titles. We do not think that this is reflective of gross abuse, but one or two titles cause concern. Even with those, we are not convinced that the existing criteria set down in the Act are not sufficient to cover most of them in any event. Just because some video publishers claim exemption does not mean that they have a right to it.
	The Government believe that the intention behind the amendment, which was so articulately expressed this evening, is absolutely right; particularly the desire to protect children from inappropriate content. Although we do not believe that the amendment is the right way to achieve this-the noble Lord, Lord De Mauley, indicated that he had some anxieties about the drafting of his amendment-we do agree that we need to consider the issue further. I hope the noble Lord will accept that the Government are not cut and dried in defence of what we have presented in the Bill. We think it has real substance to it, and we are talking about a very limited number of instances. Anxiety has been expressed, and there is wide support across the House for the general theme of the amendment in this difficult area. We intend to consider the matter further and bring forward a position on Report. Therefore, I hope that the noble Lord, Lord De Mauley, will feel that his amendment has advanced the cause a considerable way. The Government will consider the matter further.

Lord De Mauley: My Lords, I thank the noble Baroness, Lady Howe, not only for speaking, but for adding her name to the amendment. I thank the noble Lord, Lord Addington, for speaking on behalf of the noble Lord, Lord Clement-Jones, who had done the same. I am grateful to the noble Lord, Lord Monson, for his helpful contribution. I completely accept his correction. Indeed, when I moved the amendment, I acknowledged that it needed improvement. Likewise, I accept and welcome the contribution made by the right reverend Prelate the Bishop of Manchester. He is absolutely right, especially on the free speech point.
	I thank the Minister for his response. He has not entirely convinced me, and I think that he has not entirely convinced himself, that we should let the matter rest. I am grateful for his last few words, which confirmed that. There is still work to be done. For today, I beg leave to withdraw the amendment.
	Amendment 246 withdrawn.
	Amendment 247
	 Moved by Lord De Mauley
	247: Clause 40, page 43, leave out lines 41 to 44

Lord De Mauley: Amendment 247 is designed to probe the use of the power which Clause 40 would give to the Secretary of State. As I understand it, it is intended to allow for the implementation of the updated Pan-European Games Information, which is the European standard for video games. I hope that the Minister will be able to confirm that when he responds. Could he tell the House whether the clause permits the Secretary of State to carry out other activities, or is it exclusively to implement PEGI? Would the Minister not agree that matters would be improved by putting in some safeguards around the use of the power? A requirement for consultation would seem to be appropriate. Defining a specific purpose, such as allowing an order to ensure consistency with an international standard, would also be useful. I beg to move.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for his amendment. Proposed new Section 2A sets out the conditions that determine whether a video game is exempted from classification. The purpose is to define the criteria that mean that the video game is suitable only for persons aged 12 years and above. That is in line with the recommendations by Professor Tanya Byron for a statutory system which covers only games suitable for those over 12.
	The content of video material is subject to change in a growing and developing technical world. Types of content many indeed change over time. The list of criteria currently set out in proposed new Section 2A will ensure that content suitable only for children over the age of 12 is covered by statutory regulation.
	We cannot predict what alterations to the current criteria might be necessary in the future. If the type of content that is considered to be suitable only for children over the age of 12 changes, it is important that the Secretary of State and Parliament have the opportunity to reflect such matters of detail in the Act and make appropriate adjustments. It would be unworkable and overly restrictive not to allow changes to be made to these relatively low-level criteria set out in proposed new Section 2A to take account of any possible future developments and changes. I emphasise that the Secretary of State is not being given a power to make changes without accountability. The power to amend the criteria is subject to the affirmative resolution procedure and therefore subject to parliamentary scrutiny and debate. We are not seeking to extend the Secretary of State's powers arbitrarily. We are seeking that essential flexibility-future-proofing, if one likes-against a background where we all recognise that the Bill has to tackle, and be valid to deal with, changes which may occur.
	We looked closely at the scheme that best met the criteria set out by Professor Byron in her report. As she recommended, we began by consulting on various options. Following the consultation, which weighed four suggested options against the nine criteria put forward by her, and having carefully considered all the responses and all the issues, we concluded-as I think the noble Lord, Lord De Mauley, was arguing-that the PEGI system best met all the requirements. The enhanced PEGI option was selected because it best meets all the criteria that the professor set out in her report, it will offer excellent protection to children-which is the position that all noble Lords adopt with regard to these issues-and it will last into the future as far as we are able to identify. It also has the least negative impact on industry.
	I hope it will be appreciated that the Government have taken into account all aspects of this challenging area. In reserving potential changes to these criteria for an affirmative resolution procedure rather than having to go back to re-establish primary legislation, the Government are not seeking to present the Secretary of State with grossly enhanced powers but merely making provision for the fact of potential change without recourse to primary legislation. I hope the noble Lord will feel that that is a satisfactory answer and that he can withdraw his amendment.

Lord De Mauley: I thank the Minister for his response and will think carefully about what he has said. For today, I beg leave to withdraw the amendment.
	Amendment 247 withdrawn.
	Clause 40 agreed.
	Clause 41 : Designated authority for video games etc
	Amendment 248
	 Moved by Lord De Mauley
	248: Clause 41, page 44, line 42, at end insert-
	"( ) Where there are two designated authorities, the video games authority must allocate to the video works authority-
	(a) if the primary purpose is not gaming; or
	(b) if the video game is likely to be rated R18."

Lord De Mauley: Amendments 248 and 249 explore the point at which the video games authority passes over responsibility for the classification of game material to the video works authority. According to the Explanatory Notes, the purpose of the proposed new subsections is to ensure that the classification of video games which are similar to video works that would rate a restricted classification or would lead to that sort of video work remains in the hands of the British Board of Film Classification, which has experience of handling such material. This is a sensible policy. It is a shame that, as drafted, the Bill does not set it out as such. Why have the Government not specified, as Amendment 248 does, the purpose of the subsection? What other purpose have the Government in mind for it?
	Amendment 249 looks at where the responsibility lies for passing over material to the BBFC for classification. I understand that since responsibility for games generally lies with the video games authority, it needs to take an active part. How does the Minister envisage that a body with no experience in distinguishing between an 18 and R18 classification will identify the works that need to be sent to the BBFC? Are the Government proposing a whole new department within the video games authority which duplicates the work of the BBFC? I beg to move.

Baroness Howe of Idlicote: Again, I have added my name to the amendments of the noble Lord, Lord De Mauley. I am equally glad that they have secured Cross-Bench support. The Bill allows the video games authority to allocate certain classes of work to the video works authority. Interestingly, it is left to the Explanatory Notes to give Blu-ray discs and R18 games as examples. I understand that there is already agreement that these will be allocated to the BBFC. Since that is already agreed for good reason, it would make sense to include it in the Bill.
	On the first class of work, films are increasingly being marketed with ancillary games attached to the same disc. The basic product is a film with some minor gaming additions. The BBFC has extensive experience of rating films and games together. I understand that the home entertainments industry wishes this situation to continue. The Bill should specifically enable this allocation to the BBFC.
	R18 material consists of problematic and extreme material which can be sold only in a sex shop, and rightly so. The BBFC has years of experience in classifying such material. It is so trusted that, under the Criminal Justice and Immigration Act 2008, if a video work has a BBFC classification it is accepted that there cannot be a charge of possession of an extreme pornographic image. This exemption was included because the BBFC is recognised as the expert in judging what is often quite a fine line between acceptable and unacceptable content. Noble Lords will understand that this form of expertise has taken a number of years to develop and should be more sensibly recognised in the Bill. We should also be aware that if this does not happen it would be possible for pornography distributors to use a game format in an attempt to secure classification with fewer cuts.
	Amendment 249 is also important as otherwise the clause establishes a potentially damaging inequality between the two regulators. In short, the existing regulator-the BBFC-is made completely subordinate to the new video games regulator in matters of determining which body should regulate a particular product. This is undesirable as a matter of principle and also as a matter of practice. If, because of its expertise, the BBFC is given responsibility for classifying R18 games, it makes no sense for the Video Standards Councils-with no experience of such content-to have the power to determine whether the game falls to the BBFC. Such decisions on individual works within a class of work that have been allocated should be left for the regulators to reach agreement.
	I received a briefing from the BBFC last week which implied that if this allocation were enforced, and if the BBFC were to judge a game to be 18 rather than R18, it would still rate the work, thus creating a dual system. I have checked this with the BBFC, which confirmed that it would do no such thing. It would refer the work back to the VSC with a recommendation that the game was not R18. The VSC would then be able to rate the game as it saw fit. This is already agreed between the VSC and the BBFC. This amendment in no way proposes otherwise. As the Bill stands, the VSC could judge a work as 18 and not refer it to the BBFC, and the BBFC could not overrule that decision, even if it were convinced that the work in question was an R18. Given the implications in law of such a mistake, this amendment should be accepted in full by the Government.

Lord Addington: It seems we are once again addressing clarity and which group has the expertise at the moment to be able to give that clarity. The Government should look hard at this amendment, and I look forward to hearing their answer.

Lord Davies of Oldham: I am grateful to noble Lords for their contributions to this debate. The Government maintain that Clause 41 provides clarity about the division of responsibility between the video works authority and the video games authority. This is absolutely fundamental in creating a seamless system that delivers the policy intention, subscribed to by all the parts of the House, to adopt the Pan-European Games Information system of classification for video games.
	The clause balances this clarity with the necessary degree of flexibility to deal with certain types of video games and the manner in which some games are now supplied with films. This flexibility is important to ensure that we have a clear, sensible and effective system that actually works on the ground. The overriding principle is that the video games authority is responsible for determining the classifications of video games. However, following detailed discussions with the BBFC and the VSC, and in order to allow a degree of flexibility in the system that will make practical sense to everyone, the Bill allows the video games authority to allocate to the video works authority a particular class of video game, such as R18-which the noble Baroness described accurately in her speech-or a game that is to be supplied in a particular way, such as the Blu-ray discs. This means that the Bill already allows what the noble Lord is seeking to achieve with Amendment 248. We do not need to say anything more in the legislation. Clause 41 achieves what is required in a neat, clear and helpful manner, without unnecessary complication or definition. I am at one with the noble Lord in his efforts with the amendment to achieve those aims: I am merely indicating that they have been achieved already.
	I emphasise that the Secretary of State can issue guidance. Both the BBFC and the video games authority must pay attention to that guidance. I assure noble Lords, because I am responsive to the concerns expressed in several parts of the House, that the Government will include specific guidance that R18 video games should be allocated across to the BBFC, underpinning the agreement that we already have in place and in practice. I give the assurance that the Government will include that in guidance. Therefore I hope that noble Lords will feel that they have pressed the Government on these issues, that we are fully cognisant and aware of the anxieties, and that the Bill as it stands, and the way in which it is intended that it should be implemented, meets their anxieties and concerns, so that they will not press their amendments.

Lord De Mauley: My Lords, I thank those from all parts of the House who put their names to the amendment, and those who spoke. I am grateful for what the Minister said, in particular about the proposed guidance. We will all think about the matter before Report. I beg leave to withdraw the amendment.
	Amendment 248 withdrawn.
	Amendment 249 not moved.
	Amendment 250
	 Moved by Lord Howard of Rising
	250: Clause 41, page 45, leave out lines 21 to 23

Lord Howard of Rising: My Lords, I will be interested to hear the Minister's response to these amendments. Both amendments in this group deal with hybrid games material: that is to say, games containing both games and linear material. The amendment probes PEGI, while the amendment of the noble Baroness, Lady Howe, suggests a more specific solution. Does the Minister envisage PEGI automatically volunteering to give the BBFC classification rights over all linear work in a relevant game? Or does the Minister consider that there will be occasions where confirming the classification formally will be unnecessary?
	There is concern also about the labelling of such works. Games and linear material follow different levels of classification. A game based on a film that was classified as a 15 by the BBFC could be turned into a work with a minor amount of interactivity, which would suddenly move it to a 16 under games classification. I beg to move.

Baroness Howe of Idlicote: My Lords, Amendment 251 is in my name and those of the noble Lords, Lord Gordon of Strathblane and Lord Clement-Jones. The amendment replaces proposed new Section 4ZC of the 1984 Act and seeks to enshrine in law the current situation whereby the BBFC, which the Government plan to designate as the video works authority, remains responsible for any non-integral video works in a video game. This could include films or even TV series accessed as a reward for reaching a certain level in a game.
	Last week, I and other noble Lords received a briefing from the Video Standards Council. It referred to Amendment 251 as a wrecking amendment. Not only is this not my intention, but I do not accept that it is one. I was also grateful to the noble Lord, Lord Young, for arranging a meeting last week with his officials. I acknowledge that, again, he and the officials tried to persuade me that the amendment was unnecessary. However, I am afraid that I remain firmly of the belief that, if the Byron report is to be implemented in full and in a way that does not undermine the system that we have in this country for the classification of linear, film-type material, we must amend the Video Recordings Act to make it clear that the BBFC remains responsible for film-type material.
	It was suggested to me that the BBFC would classify film-type material and games, and then hand over the classification to the Video Standards Council to take account of its overall classification of the game. This is not what was suggested by Tanya Byron: nor was it the stated intention of the Government. The Government's response to the consultation on options for a strengthened video games classification states that,
	"the BBFC will continue to rate any film or video content found on video game discs that is not integral to the game, as they currently do".
	However, if I understand it correctly, the Bill raises a series of new questions and concerns. Could the VSC overrule the BBFC on non-integral, linear material? Where does this leave the consumer? We could have a situation where a video game contains a series of films and yet the disc has a PEGI classification, which, according to the Bill, could bear no relation to the BBFC classification.
	LACORS is the body that represents local authorities. Its trading standards officers must enforce these regulations, and it has informed me that it supports the amendment. It, too, has no reason to wreck the Bill. It is worried about enforcement and believes that the Bill could mislead consumers because a PEGI rating on a disc, which could be a hybrid product, would lead them to believe that it was a game rather than a series of films-or even pornography accessed through a game. This would mean that the product could also fall foul of the Consumer Protection from Unfair Trading Regulations 2008.
	It is important to recognise that the public are used to seeing the BBFC classification symbol, and understand what it means. Independent research undertaken for the BBFC in 2009 shows that 71 per cent of viewers check the BBFC classification before deciding whether to watch a video work, while 88 per cent of parents with young children rate the BBFC as effective. We cannot ignore the fact that a PEGI classification for film-type material would be confusing to the public and to law enforcement agencies.
	LACORS is also deeply concerned about how, on a practical level, it would enforce these classifications. If it was pursuing a prosecution over the sale of a game because of the linear content in that game, to whom would it turn for support in court? The VSC could say only that it had rated the product 18, for example, because of a classification given to it by the BBFC. Does this BBFC classification have any legal standing under the current terms of the Bill in relation to provision of evidence? If the BBFC could not go to court, would this leave law enforcement officers with no support in their prosecution? This is not an insignificant issue because in 2009 alone, the BBFC provided evidence in 211 cases; that was a year in which, from August, the VRA's problem meant there were no prosecutions. The only solution I can see to this issue is to allow the BBFC to remain responsible, as it is now, for non-integral linear content in games.
	In its evidence to the Byron consultation, the VSC's own data stated that in 2007 it referred 101 games-8.2 per cent of the total classified by PEGI-to the BBFC for a combination of gross violence, sexual activity and non-integral linear material. Of these 101 games, 51 were referred because they contained linear content only. Based on the VSC's own data, therefore, and assuming 2007 to be broadly representative, the percentage of games containing non-integral linear content to be rated by the BBFC would be 4 per cent of the total. Ninety-six per cent of video games would be rated exclusively by PEGI.
	It is important that this legislation is future-proofed and enforceable. We cannot predict how many video games may contain film-type linear material in future. We need a system that consumers understand and that law enforcement officers can implement. This amendment protects us from a situation where any so-called game, even one that has substantial film material, is rated solely by the VSC, which would be extremely confusing for the consumer and the citizen. It also prevents a product that is primarily linear being repackaged as a game to avoid robust BBFC classification.

The Lord Bishop of Manchester: My Lords, these amendments follow neatly the earlier debate this evening and, as I see it, they are about preserving the integrity of a system which over the course of almost a century has built up a reputation for making, on the whole, sound judgments about the age appropriateness of cinematic material. It makes sense for the video works authority-which I assume, as the noble Baroness, Lady Howe, has said, to be the BBFC-to continue to assess all film content, even if it forms part of a game. It is what it does and it is what it does best.
	Your Lordships may remember the argument that arose not all that long ago when a games manufacturer created visual footage of the inside of Manchester Cathedral, without permission, as the setting for a very violent fantasy fighting scene, including all sorts of nasty creatures, none of which I recognised as regular worshippers, using futuristic weapons. The episode showed me how much we have moved on from the days of pixelated Pac-Men wobbling across the screen.
	We need to ensure that this Bill creates the best possible system that responds to a rapidly evolving market with a classification framework that is not only fit for purpose but fit for tomorrow's purpose. That demands clarity of role and clarity of division of responsibility between the two authorities. We have already spent some time on this matter this evening but I believe these amendments have got it right. The video works authority should, without any ambiguity, continue to be responsible for classifying video works however and whenever they appear in a game. That will ensure that there is a consistency of classification of material that has appeared in a prior cinema or DVD release and that the BBFC's classifications are not undermined later by another body. That would be unhelpful for consumers and ultimately unhelpful for the industries involved. Therefore I support these amendments.

Lord Addington: My Lords, once again we come back to the idea of knowing what is on the tin-letting people know what they are going to get out of this. This may not be the right way forward but it is definitely a way forward. We need to have some idea of the correct type of classification-what actually is involved. If you have to shoot three video images on a game first then get a film, the film may be the supreme content. This approach may at least be one way of getting there.
	I am left with the image of the right reverend Prelate's congregation being rather more colourful than he originally imagined. We shall leave that there. Possibly the pillars in the cathedral obscured certain parts of it.
	We should have some way of trying to tie these two things together and letting people know what is there when they purchase something.

Lord Davies of Oldham: My Lords, I am grateful to noble Lords for their contribution to this debate. However, I fear that we have two perspectives which do not agree and therefore I am going to argue the case that the amendment should be withdrawn. The amendments relate to that interesting case-the right reverend Prelate indicated just how interesting the situation can be-when film content is included in games and the extraordinary context in which certain actions can be carried out. We all recognise the problem. We all recognise that where a piece of film is found within a video game there is an issue of potential challenge. The Government's position, as outlined in the Bill, is clear and that is why I will be seeking to defend the Bill as it stands and seeking to identify why it would be a mistake to move away from the Bill in the way in which the amendments suggest.
	The video games authority should determine the classification for the game but it has to make appropriate arrangements to seek the determination and views of the video works authority, the BBFC. It has to make arrangements to seek those views but only with respect to the film content, for which the BBFC, as has rightly been identified across the Committee, enjoys a high reputation in terms of the many years it has been involved in this work.
	The video games authority must have regard to the views of the BBFC-the video works authority-in determining the final classification of the game. I want to emphasise that if it came to a question of a court of law on the issue and if we came to the point where the issues became serious enough to be taken to court, both the organisations would be able to appear and to give evidence if required. Nothing strikes the BBFC out of the assessment for the classification. It has an important role to play. If for any reason there was a contest in court about a film that it had classified it would be expected that it would submit its evidence on its judgment. We are not taking it out of the decision. However, what we are saying-this is what is really at stake between the position of the Bill and the amendments-is that we are fulfilling the key criteria put forward by Professor Tanya Byron when she presented her recommendations on the concept we should develop: that there must be a clear system which is simple and effective for consumers with regard to games. The video games authority is that system and must be identified as such.
	Of course it does not come wreathed in laurels as the BBFC does, with its half a century and more of involvement in this. How can it; it is in a newer position? We are seeking to establish a clear authority for games. That is a prerequisite, as the noble Baroness, Lady Howe, and to a certain extent the noble Lord, emphasised. Everyone, from parents who are concerned about their children to all who are concerned about content-the industry as well as the general public-must know where responsibility lies. The Bill makes it absolutely clear that the video games authority has that authority.
	If the BBFC gave a separate classification certificate for filmed content in a video game, as the amendment proposes, it would surely undermine the purpose and effect of having a separate classification system for the games because we would have two classifications in operation or we would hand to the video works authority-to the BBFC-something that it had neither sought nor expected and that neither we, nor I think the mover of the amendment, seek to create. We are trying to establish the video games authority as the single authority that is responsible at the end of the day for classification.
	The current wording in the Bill is both certain and rational. It makes sense for the BBFC to continue to classify filmed content-that is its well established role, for which it is held in high repute-and for the video games authority to classify video games where a game contains film content. Of course the video games authority must make sensible arrangements to obtain the BBFC's determinations on that filmed content and to classify the game as a whole while having regard to the BBFC's judgment. This allows the two designated authorities to work effectively together while respecting their individual roles and boundaries and giving to the public one clear authority that is responsible for the classification at the end of the day.
	Arrangements that are so made by the video games authority with the BBFC must follow in the wake of consultation with the BBFC and have regard to any guidance that may be issued. As I have indicated, when it operates in that circumstance, it must have regard to the fact that if anything reached an unhappy pass and went to a court of law, the BBFC's evidence would also make a valid contribution to the court's proceedings. We seek a pragmatic and uncomplicated but co-operative approach that vests authority in one place.
	We have set down the framework for an effective way of handling video games that takes on board and respects the BBFC's distinct role, which has been attested to in this short debate. This means that publishers have certainty about how games will be handled by the video games authority, and consumers have certainty and clarity about the type of content that they are buying.
	That is in the Bill. I understand the anxieties that have given rise to the amendment, but I hope in the light of my explanation that it will be seen that nothing more is required in the Bill and that the amendment is otiose and can be safely withdrawn.

Lord Howard of Rising: I thank the Minister for his comments. He said that the Government's position was clear and that the proposals are sensible and rational, and went on to explain something that was about as clear as mud. Unfortunately, he has yet again explained on behalf of the Government how two organisations will work together and co-operate without being absolutely clear who will do which bit, as we have pointed out. However, in the interests of getting on with the debate, and given the Government's predilection for this sort of arrangement, which always ends up being a mess, I beg leave to withdraw the amendment.
	Amendment 250 withdrawn.
	Amendment 251
	 Tabled by Baroness Howe of Idlicote
	251: Clause 41, page 45, leave out lines 21 to 41 and insert-
	"Where there are two designated authorities, in the event that a video game includes one or more video works which are not video games, responsibility for making arrangements for determining whether such a video work is suitable for the issue of a classification certificate or for the issue of a classification certificate of a particular description falls with-
	(a) the video works authority for any video work included in the video game;
	(b) the video games authority for the rest of the video game."

Baroness Howe of Idlicote: I share the concerns of the noble Lord, Lord Howard of Rising, in that the thing is not at all clearly explained. The situation is very muddled and confusing in many respects. Again, as he has said, we will have to read very carefully what the Minister has said, although the Minister has gone a long way to try to set out something that is as clear as mud, for which I thank him. I hope that it will be clearer when one reads it in detail.
	Amendment 251 not moved.
	Clause 41 agreed.
	Amendment 251A
	 Moved by Baroness Howe of Idlicote
	251A: After Clause 41, insert the following new Clause-
	"Duty to promote online safety
	(1) It shall be the duty of internet service providers and mobile phone operators to take such steps, and to enter into such arrangements-
	(a) to bring about, or to encourage others to bring about, a better public understanding of online safety;
	(b) to provide prominent, easily accessible and clear information on filtering options of public electronic communication services for the purposes of online safety-
	(i) at the time of purchase of the service; and
	(ii) to make such information available for the duration of the contract.
	(2) In this section "online safety" means safe, responsible use of the internet and other communication devices by children and young people."

Baroness Howe of Idlicote: My Lords, in moving Amendment 251A, I shall also speak to Amendment 255A. I do so on behalf of CARE, which has a particular interest in the safety of children, particularly as far as online material is concerned.
	Amendment 251A would require those who sell internet access-internet service providers and mobile phone operators-to provide customers with prominent, easily accessible and clear information about the availability of parental control software at the point of purchase and throughout the contract. The key words "prominent" and "accessible" have been taken from the recommendations on social networking websites by the Home Office Task Force on Child Protection on the Internet. To date, the Government's energies have focused on trying to protect children with respect to the internet via best practice guidance, but this has been problematic, as Professor Byron explained. She says:
	"crucially, performance against these standards is not monitored, so the public has no way of knowing which companies are adopting good practice".
	Moreover, although the Home Office task force has produced guidelines on various issues, it has not provided ISPs and mobile phone operators with guidance on filtering. Neither has the industry produced self-regulatory mechanisms in its code of conduct. The Internet Service Providers' Association makes no specific mention in its members' code of practice relating to informing customers of filtering software. It does have a section on ISP's requirements in relation to the Internet Watch Foundation. However, much more needs to be done to deal with material that, although not illegal, should not be accessible by children. The Mobile Broadband Group's code of conduct is better, but still lacks the vital protection proposed by this amendment, which makes information about child protection filtering mechanisms prominent and easily accessible at the point of purchase and for the duration of the contract.
	I am aware that many companies make filtering options available, but surely it is time to move things forward by requiring the industry to make the option of accessing filtering software prominent and accessible at the point of purchase and throughout the duration of the contract. This amendment is simple and modest and will increase the chances that parents or guardians who buy internet access will acquire it with appropriate safeguards for their children.
	Amendment 255A requires online retailers who sell or allow access to age-restricted goods or services to have,
	"in place a clearly-identifiable and robust age-verification scheme",
	that prevents minors from purchasing or accessing the goods or services in question. I bring this issue to your Lordships' attention because I believe that we must do more than we have so far to prevent children and underage teenagers from purchasing or accessing inappropriate online goods and services. The incongruity between what happens online and what happens offline makes a mockery of our law and creates a dangerous division between the real and the virtual world which we really should not continue to tolerate. Quite apart from the problems relating to children accessing inappropriate film content online, an issue which I have already covered, there is the issue of playing games online. One example of particular concern is "Quake Live", which is based on the offline first-person shooter game and has received an 18 rating. It is very disturbing that any boy or girl can access "Quake Live" online when they would not be able to purchase a comparable game from a shop.
	Online retailers who sell age-restricted goods such as alcohol, tobacco, or access to gambling services are already required to make suitable arrangements not to sell goods to underage individuals. In practice, however, these often amount only to self-certification. My amendment would not only require a more robust framework to be put into place; it would also apply to all goods and services that are age-restricted. I am assured that gambling websites, which operate under the licensing regime of the Gambling Commission, function in a responsible way and could be a model for some, if not all, forms of online sales. They offer a number of ways in which age can be verified.
	Before I end, I must say a word in anticipation of those who may be about to suggest that these amendments will place too great a burden on business. I very much hope that the Minister will agree that it is crucial that the well-being of children is indeed well protected. If it is not inappropriate to expect the state to develop and enforce complex laws to protect adults from unscrupulous businesses in order to protect both employees and customers, it cannot be inappropriate to expect the state and businesses to go the extra mile in protecting children and the vulnerable.
	Amendments 251A and 255A are amendments whose time has come. I point out to your Lordships that tomorrow is Safer Internet Day, and it is clearly rather appropriate that we should bear it in mind. I was also interested to see in The Times last month some interesting research that had been carried out by the Australian Research Centre in Sex, Health and Society. On these issues-particularly pornography and near-pornography-the centre says that there is compelling evidence from around the world that pornography has negative effects on individuals and communities. This is something which we all know but which we need to bear in mind when framing new legislation. I beg to move.

Lord Mackay of Clashfern: My Lords, I support the amendments moved by the noble Baroness, Lady Howe of Idlicote, first of all on the basis of promoting online safety. In a recent comment, the director of research for IBM, discussing a report which IBM produced, said that the internet was like the Wild West. Exactly what he meant by that may mean different things to different Members of the Committee, but it appeared to me that he meant that it was utterly uncontrolled, at least in some respects. If that is true, then it is particularly true in relation to children.
	Dr Tanya Byron, who has already been referred to, was involved with TalkTalk in a research project looking at the interaction between children and the internet. That research reached the conclusion that 63 per cent of children had lied to their parents about their online behaviour. In other words, they knew that they were doing something online of which their parents would disapprove, and therefore the best protection was to refuse to tell them; in other words to lie about what they were doing. Some 44 per cent boasted that they could hide unsuitable internet activity from their parents. No doubt the lies were part of that hiding operation, but there may have been other ways of doing so as well. Some 53 per cent had deleted their browser history, so that their parents could not check where they had been, or which particular websites they had been visiting.
	There is certainly an incongruity between the presence of proper legal protections offline and their absence online. We have very strong protections for all sorts of activities, as the noble Baroness has said. Although there has been some attempt to produce a safe and secure environment without recourse to the law, through the promotion of voluntary self-regulation and good practice guidance, the truth is that there is still great room for improvement. In that respect, I believe that the law and this Bill have a part to play. Although it is undoubtedly true that many providers of internet access already make filtering options available for purchase, Amendment 251A will ensure that we fully benefit from filtering protection by requiring providers to make filtering options available and to make them available in a prominent place on the website as it is offered, at the point of purchase and for the duration of the contract. This provides a very simple, light-touch type of control which would have a very good chance of being effective.
	We know the dangers to which children are exposed via the internet from a number of sources. Amendment 255A deals with age verification, which is already required in quite a number of instances. It seems right to have the same concern for protecting underage children from accessing unsuitable material on the internet as we have for protecting them from accessing unsuitable things such as cigarettes, alcohol and the like offline. Why not do the same for online things as we do for offline things? I hope the Minister will be able to accept the spirit of these amendments, if not their words. I am sure that the wording can be improved by the labours of parliamentary counsel, but I think the principle is reasonably clear.

Baroness Miller of Chilthorne Domer: I am very pleased to support the amendments tabled by the noble Baroness, Lady Howe of Idlicote. I remember very clearly the debates during the passage of the Criminal Justice and Immigration Act 2008 when the Government criminalised the storing of photographs of activities between consenting adults in the privacy of their own home but did nothing to protect children from all sorts of violence and pornography, despite many of us urging them to do so. I am particularly pleased that the noble Baroness has returned to this issue. The Government's argument then was all about protecting society. It was extraordinary that they ran that argument but did nothing to protect under-18s. This is a chance to remedy that. I hope the Government will grasp this opportunity.

The Lord Bishop of Manchester: An issue which strikes me in relation to these helpful amendments is that responsible retailers who have invested in more robust age-verification systems fear being commercially penalised as their less scrupulous competitors will become magnets for those seeking to bypass the age-restriction laws. I appreciate that this makes it no less illegal for them to sell to minors, but the fact remains that we currently provide neither stick nor carrot for them to invest more heavily.
	My support for these timely amendments, especially Amendment 255A, is borne partly by the practical desire to clamp down on these irresponsible online retailers, and partly from a wider concern-one that stretches to the nature of communication and interaction online. It is difficult for retailers to know whether the person at the end of the mouse is old enough to buy their goods. That belies the wider fact that the internet can create anonymity and fabricate masks. If we encrypt our identities, for whatever malevolent intent, the people at the other end will suffer. In this case, young people are asking retailers to break the law. As the noble and learned Lord, Lord Mackay of Clashfern, said, they often lie to, or hide the truth from, their parents.
	We need to face up to the consequences of doing more and more things in our technological age without real interpersonal connectivity. I do not wish to detain your Lordships on this matter this evening, but I raise the issue because this amendment helpfully points to some interesting and also disturbing shifts in the tectonic plates which undergird our common life. In common with other noble Lords who have spoken, I very much hope the Minister will respond in a positive way, at least to the spirit of what has been said in this debate.

Baroness Buscombe: I lend my support to the noble Baroness's amendment. I am trying to recall the date when I spoke on the Criminal Justice and Police Bill-it was either 2000 or 2001. At that time, I asked for the very same safeguards to be considered by Government. I was watching my own children do just as my noble and learned friend has described: accessing all kinds of stuff on the screen without my knowledge and without my understanding. So many parents either turn a blind eye to this or, in many cases, simply do not understand how easy it is for their children to access all sorts of material without their knowledge. I hope that we have come a long way as regards accepting this since 2001 when I was told that it was too difficult to do something about this. The reality is that the technology is there and it is just a question of cost. Obviously it is a cost that providers would have to take on board, as I believe they should.

The Earl of Erroll: The objective behind these amendments is extremely laudable and my sympathies lie entirely with my noble friend Lady Howe. We have to be careful that what is in these amendments will work and whether it is technically possible. Once you have a connection with an internet service provider, your homepage could be with anyone, although it will probably be Google or the BBC or one of the other big providers. It may be that the responsibility should lie with someone else to produce a button showing how you can access parental control. It may not be best placed with your internet service provider.
	On the duty to confirm age, we have to be very careful not to penalise companies which are purely resident or have their servers in Britain. There is the problem of where a transaction takes place. If you use Mozilla, for example, you can have something which tells you the true residence of the server through which you are purchasing. I find it helpful in telling me whether the site is likely to be genuine or not. The number of companies which appear to be British but in fact are hosted abroad is amazing and, therefore, the products come from a foreign jurisdiction. So where does the liability lie? Perhaps we ought to put in some provisions like Rome II, which deals with suing for goods which are not fit for purpose. It may turn out to be more complicated. So although I fully understand the amendments and my sympathies lie with them, much more thought and extra work may be required.

Lord Howard of Rising: It will be highly interesting to hear the Minister's response to these amendments. I was under the impression that there was a clear legal duty to ensure that age-restricted products are not sold to those who are not old enough to purchase them. However, having listened to my noble and learned friend Lord Mackay, I see that that may not be the case. Perhaps the Minister can tell the House.
	I would also be grateful to know whether any assessment has been made of the efficiency and efficacy of the existing legislation. Has it made a measurable impact on restricting inappropriate access to the under-18s? Listening to the statistics quoted by my noble and learned friend Lord Mackay, I do not think so, which makes one wonder, laudable though the intentions behind these amendments may be, how they can possibly be made to be effective, as suggested by my noble friend Lady Buscombe. I look forward to the Minister's comments.

Lord Davies of Oldham: I shall not agree with the amendments but at least I shall take most of the House with me when I express our constructive approach to these very difficult problems, as opposed to Opposition Front Bench Members who seem to throw up their hands in horror and say that nothing can be done. I shall turn to what can be done in a moment.
	Of course, I entirely sympathise with the objectives behind the amendments and the concern about the safety of children on the internet or when using other modern communication devices. We showed the importance we attach to this by commissioning the recent report, to which much reference has been made in the past hour, from Dr Tanya Byron entitled Safer Children in a Digital World. We did not merely accept all her recommendations but-this may take the breath away of noble Lords who can adopt from time to time a somewhat critical stance with regard to the Government-we have already seen action on them. The work is being led by the UK Council for Child Internet Safety, which was set up in December and brings together the Government, law enforcement agencies-I am glad that the issue of the law and how effective it can be has come up in these discussions-charities, other NGOs and a wide range of companies. The council has been hard at work since its foundation. It is already doing much to promote a greater understanding of online safety among children and, crucially, their parents and carers, and to improve education in schools by making online safety part of the curriculum.
	The council is also working with industry to implement effective regulation of online services that children use, which will be reviewed independently to test how effectively safeguards work. I agree with the representations made this evening about needing to know the effectiveness of the action taken. In addition, the council will launch the Click Clever, Click Safe public awareness campaign with an online version of the green cross code-Zip it, Block it, Flag it-which is intended to see the digital code become as familiar as the green cross code was to communicate with parents. I heard what the noble Baroness, Lady Buscombe, said about parents' awareness. I could not agree more, but a great deal of the difficulty is not that children conceal things from their parents, but that their parents are unaware of what they ought to be looking at and for. That is what this process is designed to deliver.
	The work of the council already anticipates two points that were made in this discussion. It has already said that it is important that monitoring is carried out. There is no doubt that we need to see monitoring of performance against the codes of conduct, and the council has stated that it will take responsibility for ensuring that that is done. The noble Baroness, Lady Howe, indicated that tomorrow is Safer Internet day. That is a Europe-wide sponsored event, but the council supports it and is launching its public awareness campaign tomorrow as part of developments on that day.
	The answer to the well founded anxieties about these issues is that action is already being taken and largely takes on board the points raised in this debate, save for the issues raised by Amendment 255A. I am eager to confront the noble Lord, Lord Howard of Rising, on his rather negative stance with regard to this, although I am not too sure that I eagerly accept his invitation to clash with the noble and learned Lord, Lord Mackay, on how the law will be affected. It is a serious problem that children using the relative anonymity of the internet can purchase age-restricted goods and services that they would find hard to get if they were buying them in person. However, we already have clear laws in place. The issue is enforcement. That was the question that the noble and learned Lord, Lord Mackay, identified, and he was followed by several other noble Lords who have contributed to this debate and by the right reverend Prelate. The Government's principle is quite clear and it underpins the law: what is illegal offline is also illegal online. There is no distinction between the two; there are no separate laws. The Bill cannot be used to create a different framework from what obtains elsewhere. The issue is how we enforce the law.
	The right reverend Prelate identified the fact that business has a clear interest that if the law is to be effectively enforced, it must be universal or else there will be a comparative advantage to those who break and defy the law. We have recently seen slightly safer, although difficult, areas. On the selling of tobacco, although we never rest content, we are somewhat reassured about how the law is enforced. On alcohol, the challenges still remain. The degree of public concern about the sale of alcohol to young people is being reflected in business practice across the country and the widespread public concern and anxiety that action should be taken. By the same token, that has to apply online. Retailers must already have robust systems for verifying the age of their customers and can be challenged and brought before the courts if they fail to carry out verification and sell to underage customers. We have got to make sure that that obtains for the sale of goods and services online.
	I share the Committee's anxieties. I am trying to go one considerable stage further, almost the diametric opposite to the noble Lord, Lord Howard of Rising, who identified the problem with his usual accuracy but is doubtful whether there is any solution. There is a clear solution. Public opinion is demanding of government, law enforcers and the community. The council brings together all those who are concerned with effective action to protect our children and guarantee that the law is effectively enforced. The structure is there. There is no need to amend the Bill. What we need is public awareness, public action and action by all those with responsibility for the safety of our children. That is the basis of the Government's position. The final one, which these amendments contradict, is that what is unlawful offline is also unlawful online. I hope the noble Baroness will withdraw her amendment on that basis.

Baroness Howe of Idlicote: My Lords, I am very grateful to the Minister for having set out quite carefully and fully what the Government are doing with advertising campaigns and so on. However, I can see no reason why he would not support the idea of having internet service providers inform customers about filtering software, for example. They could do that perfectly well and it would not cost huge sums of money. It would be another way of informing the public whom we have all heard are not at all aware of much of what their children are watching, should not be watching and would not be watching if there were no access online.
	I thank everybody who has taken part in this debate because it illustrates the fact that these issues are still of considerable concern. In accepting, as I have done, that the Government are doing a certain amount, it is also clear that more needs to be done. I hope, too, that the noble Lord, Lord Howard of Rising, will be listening hard to some of the speeches made by his noble friends, which might help the Opposition to think a little more positively than it appears at the moment.
	I thank the noble Baroness, Lady Miller of Chilthorne Domer, for reminding us of previous battles. It is another illustration of how far back all this goes. We continue to fight and we shall continue to air these issues in future. I am sure that the right reverend Prelate the Bishop of Manchester will accept thanks for the support that he has given to the debate.
	I certainly want to read what has been said and to discuss anything further that we can do to see whether there is a case for coming back on Report. In the mean time I beg leave to withdraw the amendment.
	Amendment 251A withdrawn.
	Amendment 251B
	 Moved by Baroness Howe of Idlicote
	251B: After Clause 41, insert the following new Clause-
	"Additional protection from harmful material through online on-demand programme services using age verification scheme
	For section 368E(2) of the Communication Act 2003 (harmful material), substitute-
	"(2) An online on-demand programme service must not contain any material which might seriously impair the physical, mental or moral development of persons under the age of eighteen.
	(3) If an online on-demand programme service contains the following material, the material must only be made available using a clearly identifiable and robust age verification scheme to determine that the person purchasing or otherwise obtaining access to the material is not under eighteen-
	(a) material which might seriously impair the physical, mental or moral development of persons under the age of eighteen;
	(b) material which is contained in a video work for which a classification certificate has been issued containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops);
	(c) material which falls within subsection (4) unless it is contained in a video work for which a classification certificate other than one containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops) has been issued.
	(4) Material falls within this subsection if it is pornographic and portrays, in an explicit and realistic way, any of the following-
	(a) an act of penetration of the vagina or anus of a person with a part of a person's body or anything else;
	(b) the performance by a person of an act of intercourse or oral sex;
	(c) the performance by a person or an act of intercourse or oral sex with an animal;
	(d) an act of masturbation;
	(e) an act of ejaculation;
	(f) human genital organs or human urinary or excretory functions; or
	(g) an act of restraint or violence which is associated with sexual activity.
	(5) In this section-
	"classification certificate" and "video work" have the same meaning as in the Video Recordings Act 1984;
	"pornographic" has the same meaning as in section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images).""

Baroness Howe of Idlicote: The Committee will be pleased to know that this is the last in the line and refers to an age verification scheme for certain defined online pornographic material access to which could otherwise be harmful to children.
	I believe that the amendment is necessary because the current regulatory regime under the Communications Act relating to video on demand services operating from the UK is insufficient to protect children from harm. The Video Recordings Act ensures that in the physical world the supply of R18 hardcore pornography is limited to licensed sex shops. We must not forget that that is all behind very definitely closed doors when in the real world, as it were. Children are not permitted to even enter, let alone purchase products from these stores. Mail-order supplies of R18 DVDs are prohibited in this country. These restrictions are in place because as a society we believe that children should not have access to such material. In contrast in the online world there is no such restriction, even for UK-based hardcore pornography. Indeed, service providers are free to provide such pornographic content without any access controls to prevent viewing by children.
	The Communications Act only requires service providers to place content behind access controls such as credit card payment or checks against the electoral roll, if the material,
	"might seriously impair the physical, mental or moral development of persons under the age of eighteen".
	I have already referred to some research that has been done, which seems to indicate that viewing such material has an effect on youngsters growing up.
	Ofcom, which currently regulates video on demand services and ATVOD-the Association for Television On-Demand-which is expected to regulate this area in the near future, have both concluded that material classified by the BBFC in any category including R18 would not be considered likely to "seriously impair" children. This interpretation of the Act means that the new online regulated environment is sufficiently robust to protect children from potentially harmful content, particularly hardcore pornography and material which would be rejected under the Video Recordings Act in the physical world.
	The amendment would ensure that the current regulations would be strengthened to provide protection for children from R18 and R18-equivalent content in regulated video on demand services. The amendment would require additional regulations which clearly and specifically target R18 and R18-equivalent material and place it behind access controls, coupled with an outright prohibition on content which goes beyond that which would be classified by the BBFC in any category. I hope that the Government will carefully consider this amendment which will ensure a more consistent regulatory approach to the online and physical world to protect children from harmful content. I beg to move.

The Lord Bishop of Manchester: My Lords, I do not think that the noble Baroness, Lady Howe, should in any sense feel that there will be relief all round the Chamber now that she has come to the end of her series of amendments. She is to be congratulated on raising a significant number of important matters that must be addressed. On this matter, I am sure that the Minister and your Lordships will feel that there are clear issues of concern, and I hope that the Minister will show that the Government take them very seriously.

Lord Davies of Oldham: My Lords, I am happy to reassure the noble Baroness, Lady Howe, and the right reverend Prelate the Bishop of Manchester on these points, but I cannot accept the amendment because we have a law in place that achieves its effect. Section 368E(2) of the Communications Act was introduced by the Audiovisual Media Services Regulations 2009 and requires that, if an on-demand programme service contains material which might cause serious impairment to children or young people, it should only be shown in a way that would ensure that they do not usually see it or hear it. The regulations are in response to a European Union directive that applies to all on-demand programme services all the time. I accept entirely the anxieties of the noble Baroness about these issues, which prompted her to table the amendment, but the question is whether we should go further than the present regulations. We are in discussion about this with Ofcom and the Association for Television On-Demand, the leading video-on-demand industry body to make sure that any moves we make are the right ones to ensure that children are adequately protected. If it turns out on reflection that it is necessary for the Government to take action, we can introduce further regulations under the same provision as those in force at present, to strengthen and reinforce the protection. I reassure the noble Baroness that she has raised an important topic but her amendment is not necessary.

Baroness Howe of Idlicote: My Lords, I am grateful to the Minister for what he has said. I cannot say that he has completely reassured me. No doubt, not only I but CARE, BBFC and others will look at what he has said. We shall see whether there is a reason to come back on Report. I should also like to thank the right reverend Prelate the Bishop of Manchester for his support. On that basis, I beg leave to withdraw the amendment.
	Amendment 251B withdrawn.
	Schedule 1 : Classification of video games etc: supplementary provision
	Amendments 252 and 253 had been withdrawn from the Marshalled List.
	Amendment 254
	 Moved by Lord Howard of Rising
	254: Schedule 1, page 52, line 19, leave out sub-paragraph (5)

Lord Howard of Rising: My Lords, I should like to probe the Minister as to why, under paragraph 2(5) of Schedule 1, the Government are giving up control of the fee an authority may charge for classification. The idea of a Government giving up control of something, when those involved apparently did not ask for it, is unusual enough for it to warrant further investigation. I look forward to hearing what the Minister has to say.
	Amendment 255 is more substantial. Paragraph 4 of Schedule 1 allows an authority to charge for the classification of the same material every time it is reproduced in a different format, despite the material being identical. I understand that it is the practice for PEGI, and very lucrative it must be, with so many different ways of playing video games. I am glad that the BBFC apparently has no intention to start that practice and will instead continue to charge one fee for each video work, regardless of whether it is brought out on different platforms. Does the Minister feel that multiple fees of this nature are right? It seems artificial to insist on a distinction between the same material received in a different manner. I beg to move.

Lord Davies of Oldham: My Lords, I thought that the noble Lord was for the moment going to congratulate the Government on an unusual and particularly attractive action, but he did not quite manage the latter part of that phrase. I want to assure him that what we are doing is attractive. We do not want the designated authority to charge unduly burdensome fees by virtue of this legislation, but it must charge reasonable fees to reflect the level of work which is undertaken. I am sure that the noble Lord will agree with that.
	We believe that it is right that the Secretary of State has a consultative role in the fees tariff, which is one stage back from central government authority. It should have a consultative role in the fees tariffs, which should be set by the designated authority. There is no need to have a formal approval process. We want to create a fair and transparent system with every reason to believe that the designated authority will act responsibly and properly in relation to setting the fees. If that were not the case, the whole process of setting up a designated authority could obviously be called into question. We are seeking the power to be exercised by the designated authority and for the Secretary of State to be kept at a distance. I hope that that commends itself sufficiently to the noble Lord for him to feel that his amendment can be safely withdrawn.
	Amendment 255 refers to the section which makes clear what is covered by a classification certificate and what the certificate relates to. This is particularly pertinent to video games because a change in format can lead to a different perception and impact of the game. This is a practical and effective measure to take account of existing and future formats in a changing technology. It means-this is the most readily appreciable reason why this section is as it is-that publishers will not be able to take several already classified works, cut them and repackage them in a new way and then seek to rely on the previous classification certificate for the work in question. We all know that such cutting and pasting, although the process is slightly more sophisticated than that phrase suggests, can change content. That is why we are seeking to ensure that if changes of that nature are effected, the designated authority could make a new specification if it felt the need to do so, although it does not have to.
	I say to the noble Lord, Lord Howard of Rising, that the present section will commend itself because it is permissive. The designated authority does not have to act, but if it felt the need was there to act, it has the power to do so, which is why I want to defend the section as it stands and to resist Amendment 255.

Lord Howard of Rising: I give belated but sincere congratulations. I was so worried about the out-of-character action that I completely forgot to give my applause, which I now do belatedly. I hope that the Minister will accept it. I also bow to his much greater knowledge of video games than mine. I do not know when he finds time to play them, but I accept his explanation and beg leave to withdraw the amendment.
	Amendment 254 withdrawn.
	Amendment 255 not moved.
	Amendment 255ZA
	 Moved by Lord Howard of Rising
	255ZA: Schedule 1, page 53, line 25, at end insert "and insert-
	"(2) Regulations under this section may require content advice issued with the classification certificate by the designated authority to be shown in a manner so specified.""

Lord Howard of Rising: My Lords, this amendment would ensure that consumer advice is added to every video work, along with the classification. The inclusion of voluntary consumer advice has become widespread and provides a useful tool for consumers.
	The type of material a person finds offensive or unpleasant varies enormously. Some people object to watching violence while finding explicit sexuality acceptable. Others are exactly the opposite. Many parents would not mind their children being exposed to a single use of a swear-word but would find a profanity-filled film too much. Consumer advice is a quick and simple way to see what sort of material triggered the classification. Since the BBFC automatically writes consumer advice for every work it classifies and the size of the classification label remains the same whether or not the advice is included, it is no surprise that the majority of major producers include the advice as a matter of course. Indeed, it is hard to think of a reason why a producer would not include the advice except where, as has happened occasionally, it is to the production company's commercial advantage that people do not know the full story about what they are buying. I beg to move.

Lord Davies of Oldham: My Lords, once again the noble Lord is reflecting his authoritarian instincts and seeking to make compulsory that which at present is mainly advisory and permissive. The Government are, of course, concerned that the BBFC and the VSC need to make their classification on DVDs and games clear. Additional advice is at present permitted and often welcome as a way of providing additional information to consumers. Most DVDs and games provide sufficient information about the contents to allow the consumer to make an informed choice. After all, if the consumer buys something which he did not intend to buy, his reaction is likely to be very critical of the provider. There is absolutely no evidence to suggest that making additional advice compulsory would provide any additional protection.
	There was no call for compulsion in this area during the extensive consultation we undertook before drawing up the legislation. It is an extra imposition on industry, especially given that there is no restriction on what the designated authorities might impose. So the noble Lord might, in fact, be proposing an excessive demand on the industry because he is leaving it to the designated authorities to make that judgment. We believe that there is some benefit in additional advice and it is often provided to the advantage of the consumer. However, we do not see the case for making it compulsory beyond the necessary certification advice which is already provided for. I hope, therefore, that the noble Lord will return to his normal bent and feel that his amendment ought not to put an extra burden on industry where it is not necessary.

Lord Howard of Rising: I thank the Minister for his remarks. I do not think it would be a burden on industry but I am so upset about him calling me authoritarian that I cannot put my argument very well. My amendment is meant to provide a form of practical assistance with the proliferation of unsuitable material which we have been talking about quite a lot recently. I beg leave to withdraw the amendment.
	Amendment 255ZA withdrawn.
	Schedule 1 agreed.
	Amendment 255A not moved.
	Clause 42 : Extension and regulation of licensing of copyright and performers' rights
	Amendment 255B
	 Moved by Viscount Bridgeman
	255B: Clause 42, page 46, leave out lines 4 to 42 and insert "30 insert-
	"Extension and regulation of acts permitted in relation to copyright works
	30A Orphan works
	(1) The Secretary of State may by regulations provide that acts in relation to an orphan work which would otherwise require the consent of the copyright owner may be done notwithstanding the subsistence of copyright.
	(2) A work shall become an orphan work when the copyright owner cannot be found.
	(3) The burden of proof that the copyright owner cannot be found shall be on the person who publishes the orphan work, and the burden shall be discharged by proof that a diligent search to identify and locate the copyright owner has been undertaken and has not been successful.
	(4) Fair dealing with an orphan work shall not infringe copyright.
	(5) The work shall cease to be an orphan work when the identity and location of the copyright owner becomes known.
	(6) The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.
	(7) The copyright owner shall be compensated in an amount equal to the licence fee he would have received had he been identified at the time of publication and he shall be entitled to aggravated damages if the person who publishes the work is unable to discharge the burden of proof described in subsection (3).
	(8) The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person's becoming or remaining authorised has been met or ceased to be met.
	(9) In this Part references to a work as, or as ceasing to be, an orphan work are to be read in accordance with regulations made by the Secretary of State.
	(10) Regulations under subsection (6) may operate by reference to guidance published from time to time by any person.""

Viscount Bridgeman: My Lords, as this is the first time I have spoken at this stage of the Bill, I declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive, and a member of the British Association of Picture Libraries and Agencies and the Creators' Rights Alliance, both of which have briefed me but not on this amendment. I shall not be pressing Amendment 255B in the name of my noble friend Lady Buscombe and myself since it is a probing one, but I wish to speak briefly to it because are some important points are associated with it.
	In addressing the orphan works problem, there are some honestly held differences of opinion between the licensing approach in new Clause 116A and the exceptions route represented by Amendment 255B and new Clause 30A. It is clear from contact that I have had with interested parties to the Bill that the licensing route is the option favoured by the majority, but by no means all, of stakeholders. I am well aware that all sides of your Lordships' House wish this Bill to pass into law in this Parliament, which is the basic reason why I shall not press my amendment at this stage. I am also cautiously reassured by the intentions expressed in the Government's recent briefing paper that there will be wide consultation in connection with the framing of the regulations and the code of practice that will derive from them. I thank the Minister for facilitating a meeting with his officials and the Intellectual Property Office, which I gather will be responsible for drawing up these regulations. However, some important aspects are associated with this amendment, which I hope that the Minister will take note of for possible considerations in the later stages of this Bill and in the crucial task of framing the regulations.
	The proposed Clause 30A would be an additional permitted act to set beside those already set out in Chapter 3 of the Copyright, Designs and Patents Act 1988. It is effective, inexpensive and entirely consistent with a cornerstone and the existing structure of copyright law, which goes back centuries, in that it preserves the integrity of the exclusive right to copy. This is the foundation of copyright. As it stands, Clause 116A alters the basis of copyright law, which confers on the first owner an inalienable right until he voluntarily parts with it. The exceptions route achieves the objective without depriving the owner of his or her property rights. Secondly, it places the burden of proof for establishing orphan status where logically it should belong-with the user-and not in the hands with a third party, a licensing body. In this, it contrasts with Clause 116A, in which a third party, namely a licensing body, can be interposed between copyright and owner. The owner can lose control of his copyright. It is a basic point, which this House should be aware of. I am also aware that that point is addressed in a new clause recently tabled by the Government, so I am grateful for that.
	I make it clear that the ambit of the exception should be confined to institutions approved by the Secretary of State and would be aimed at those who hold the major collections of orphan works. The composition of those collecting societies is covered in amendments about to be discussed. There is nothing to prevent these institutions from combining together to create their own licensing body. Clause 30A is but one of a number of alternative solutions to the orphan works question. In not moving it, I am pleased to put my name to those amendments in the range Amendments 260 to 272, in the name of the noble Lords, Lord Clement-Jones and Lord Razzall, which should have the laudable effect of improving certain aspects of the clause as currently drafted.
	I make two further important points. The first is that straightforward procedures are put in place to enable the rights owner to assume control of this work once he or she has made himself known. The standard of proof required to establish title should be reasonable-and again I have to concede that the new government amendment refers to that.
	In the Times of the past week, there have been two letters, one from the curators of leaders of the majority of the major museums in this country, supporting the present proposal. It was followed today by a letter written by the executives of institutions representing a large body of creators who have grave concerns of this Bill due to the possible exploitation of their members' rights by unscrupulous users. I know that my noble friend Lady Buscombe will speak further on that matter. Those settling the secondary legislation must bear in mind that monopolies or quasi-monopolies by collecting societies should be tolerated only as long as such structures are the only means of protecting effectively the rights of individual owners. I beg to move.

Baroness Fookes: The point is probably academic, but if this amendment were to be passed, I could not call Amendments 256 to 282AZA by reason of pre-emption.

Baroness Buscombe: My Lords, I rise to speak in support of Amendment 255B, to which my name is added. Clause 42 delegates to the Secretary of State the power to settle regulations which will transfer a property right, the right to copy, from one person to another without consent. This is, in jurisprudential terms, a very significant derogation from widely accepted principles of law.
	I entirely accept, and indeed very much support, strong arguments for broadening public access to art works which are currently restricted by copyright law. However, unless the regulations are created with clear and adequate safeguards, the impact on the creation and dissemination of visual arts will be significant.
	A very positive aspect of Clause 42 is that it has generated considerable discussion and debate beyond your Lordships' House, and highlighted some crucial aspects of copyright law which have been referred to by my noble friend Lord Bridgeman, and which I very much hope the Government will address in drafting the regulations.
	My noble friend referred to two letters published in the Times: one of 3 February with the headline, "Unlock collections for digital access to all", and another from today, "We must not jeopardise the fundamental rights of their creators". These letters explain why my noble friend Lord Bridgeman and I believed it important to propose a route to broadening public access to art works which are currently restricted by copyright law, while seeking to protect the fundamental rights of their creators. To those who care only for freeing up access for all, without regard to the future commercial viability of creators, I say, "Be careful what you wish for". As it stands, Clause 42 does not achieve this necessary effect.
	While I am conscious, as all in your Lordships' House are, of the desirability of seeing this Bill passed, we must do all in our power to avoid unintended consequences which may do more harm than good-particularly in the longer term, given that none of us can predict where technology will take us and thereby test the boundaries of copyright in years to come.

Lord Shutt of Greetland: My Lords, my noble friend Lord Addington and I did not make ourselves available for the digital economy tour, but we turned up and therefore were pressed into service in the absence of three of our noble friends.
	These amendments in the names of the noble Lords, Lord Clement-Jones and Lord Razzall, endeavour to enhance this clause on the licensing of orphan works. Clearly, my noble friends are unhappy with the looseness of proposed new Section 116A, and believe that it needs strengthening.
	The noble Lord, Lord Davies of Oldham, will recall that we dealt with orphan assets on a previous occasion and another Act: the Dormant Bank and Building Society Accounts Act. Much of the discussion during the passage of that Act was over the worry and concern about assets being reunited, and in Amendment 272 of this Bill, for example, there is reference to the orphaned work and the copyright owner being "searched for".
	There are now several amendments to Clause 42, and there is real concern about whether and how, once the author returns, these matters will be dealt with. These amendments are the work of my noble friends, not me, and I place them before the Committee.

Lord Howarth of Newport: My Lords, I am very grateful to the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Buscombe, for acknowledging that we have here a problem that needs a sensible, civilised and practical resolution. It is very important that masses of material that is in some of our great national collections should be released so that it becomes available for scholarly, educational or other cultural uses in the public interest. I do not think that anybody desires to deprive rights holders of their legitimate rights, but we are talking about orphan works that are, by definition, works where rights holders cannot be identified or traced. We need to acknowledge that this is a very large-scale problem.
	In a speech to the ALAI congress last year, the chief executive of the British Library, Dame Lynne Brindley, explained just how significant this issue is to the British Library, which has estimated that over 40 per cent of its archive collections may be orphan works. That figure was corroborated by a recently released international study entitled In from the Cold, which found that up to 50 per cent of works in large archives were orphan works and, indeed, that in excess of 50 million orphan works were held in somewhat more than 500 organisations which were surveyed. A huge amount of content is thus effectively off-limits under the way that copyright law is at present constructed. It is hence accessible only with difficulty, providing little value or benefit to anyone. I am sure that the Committee will agree that it is highly desirable to find a workable solution to this problem, while balancing the legitimate rights of rights holders.
	British Library staff, the chief executive said, have spent literally thousands of working hours trying to identify rights holders who often cannot realistically be found and probably do not exist. For example, in one oral history project involving a series of unpublished interviews held in the 1960s and 1970s at St-Mary-le-Bow church in the City of London, 302 hours were recorded as being spent by British Library staff and their paid contractors in looking for 259 rights holders. Some of those rights holders were famous and easily identified, but many were local teachers, bankers, clergy or professionals who, all those years afterwards, could not be tracked down.
	Despite all the time and trouble that the library took, it was only able to locate 14 of those rights holders, all of whom then gave permission for their material to be used freely. Much of that material is of considerable potential educational and scholarly value, but of no commercial value; it was never created with commercial value in mind. Spending so much time on fruitless searches for rights holders is really not a sensible or, I would suggest, a proper use of public resources-a very important question in these times of financial stringency. It is not surprising, then, that much of the cultural sector is agreed on wanting an exception in copyright law for orphan works.
	It is essential to maintain legal and reputational certainty for libraries, archives and museums, which are putting parts of their collections on the web, and to enable that material to be released into use. It therefore seems to me that whereas collective licensing and collecting societies are important for commercial purposes, we are talking of non-commercial, educational, scholarly and cultural purposes. Those should be treated differently in the public interest, and it is right that an educational or cultural body should be able to receive a licence from the Secretary of State, as the Government propose-and, as I thought, was compellingly argued in the letter in the Times of 1 February, signed by 26 leading figures from the educational, research and cultural sectors.
	I was surprised by the tone of the letter in today's Times from the distinguished writers and publishers, who said that the Bill would allow any individual or institution, regardless of their motivation, to conduct a rudimentary search, decide that a work appears to be orphan, and licence themselves on that basis to exploit it. However, Clause 42 envisages that the Secretary of State would use regulations to govern the manner in which those licensed may proceed. Schedule 1(a) would confer on the Secretary of State power to provide for codes of practice relating to licensing bodies and the regulation of licensing bodies and of other persons authorised.
	It seems that the Government have recognised a real problem, put forward a sensible and decent solution, which will allow important cultural resources to be released and made widely available for the public benefit, while not jeopardising legitimate copyright interests. I am happy with the Government amendments. I personally hope that the House will reject amendments that seek to unravel this well-constructed measure.
	We are not talking of fly-by-night pirates but of the professional staffs of the British Library, the National Libraries of Wales and Scotland, the national museums, the Wellcome Foundation: people of profound scholarship and professional scruple, who naturally respect copyright as essential to the academic edifice, to the creative endeavour and the publishing industry. It is very odd to suppose that they would play fast and loose. They have powerful protections for copyright carefully built into their operational systems and have been wrestling strenuously and conscientiously with copyright issues in the digital era.
	Within the framework proposed by the Government, if a rights holder turns up after their work has been exploited as orphan, they will receive fair compensation. The licence would only be granted on this basis. Libraries, knowing the background of their collections, may well be better placed to search for a rights holder of, say, private diaries, a locally published history or hand-written letters or notes than a collecting society representing-very competently and appropriately as they do-mainstream commercial material. The Government's proposals seem well-balanced.

Viscount Bridgeman: My Lords, I take issue with the noble Lord, Lord Howarth. He was suggesting that we did not have orphan works in mind at all. In fact, the exception proposal is exception from copyright. So, at that stage, anybody using an orphan work would not, in that respect, be infringing copyright. The requirements to search are common to both routes. I would be delighted to continue elsewhere.

Lord Howard of Rising: My Lords, the Government have finally accepted, late in the day, that something needs to be done to address a long-running problem. However, unfortunately, they have failed to work out a solution or done the necessary preparatory work before coming to Parliament to demand extensive new powers. The question of whether orphan works should be licensed and used and the best way to do that has been around for many years. For some time, there have been calls for Government action on this point. There has been plenty of opportunity to produce properly thought-out legislation rather than what we debate today.
	Many stakeholders have welcomed this clause with enthusiasm. It must have been deeply frustrating for organisations storing endless corridors of fascinating material which cannot be used, distributed or displayed. I sympathise with their relief that finally these treasure troves will be opened up. However, that relief should not cloud the consideration of whether the final scheme is appropriate, fair or sensible. The desire to use genuine orphan works must not lead to any weakening of legitimate copyrights. Such a move would be deeply unfair and would sit most uncomfortably with the first part of the Bill, which is all about protecting copyright.
	So far, the Government have told us little about how an orphan works scheme will operate. Any safeguards in this Bill, such as the code under which the licensing bodies might operate, are optional. There is nothing in the Bill, as currently drafted, to require a licensed body to make appropriate efforts to find the copyright owner, nor to require that copyright owners will be suitably recompensed if they turn up. Indeed, there is no guarantee that the scheme will do what it is intended to do. That is, allow organisations to use orphan works without fear of future legal action. The noble Viscount's amendments make a good start in filling in some of these blanks. I look forward to hearing the Minister's response.

Lord Young of Norwood Green: My Lords, I apologise in advance for giving a lengthy reply, but this is the first time we have debated this issue and it merits such a reply. I thank the noble Viscount, Lord Bridgeman, for his constructive approach to this matter.
	This group of amendments appears to have three objectives. The first is to insert a definition of "orphan works", including requirements for a diligent search. The Government genuinely sympathise with the intention of this amendment, and, taking on board the report from the Delegated Powers and Regulatory Reform Committee, have tabled Amendment 282AZA, which we shall discuss later. I believe that this new definition provides for the diligent searching which the amendment seeks to achieve, so I would urge noble Lords to consider withdrawing it.
	The second objective of the group of amendments is to make provision for payment for use of orphan works, including an indemnity for the user. I understand that the intention of these amendments is to clarify how payment for use of orphan works would work in practice. The Bill gives the Secretary of State powers to deliver a solution to the long-standing problems caused by orphan works, and this includes powers to make regulations dealing with royalties paid for the use of orphan works. As I say, we intend to define those in regulations. There will be full consultation on the regulations later in the year.
	Amendment 265 requires the person authorising the use of an orphan work to indemnify its licensees for any liability they incur through use of the orphan work. As authorisation gives consent for the use of an orphan work, any licensee will not infringe copyright, so an indemnity would serve no purpose. It is worth making it clear that, as I said, the Government are committed to engaging in extensive and full consultations with interested parties to inform the final shape of the regulations-the noble Baroness, Lady Buscombe, referred to that-that will govern orphan works schemes. We fully understand the importance of those. The regulations will ensure that we get the balance right between the creator and the desire to share these orphan works with the public at large.
	The third and final issue in this group of amendments is raised in the definition introduced by Amendment 255B, which seeks to provide that fair dealing in an orphan work does not infringe copyright. As drafted, Clause 42 inserts powers to make regulations providing for the use of orphan works. There is a power to make consequential amendments to the Copyright Act inserted by Clause 42, but at present there is no intention to alter the exceptions contained in that Act. Again, any changes to the current system of exceptions, if that were proposed, would be introduced only after full consultation.
	The noble Viscount, Lord Bridgeman, talked about the two letters to the Times, one of which was welcoming and the other of which expressed concern. I can understand the concern. This is a big step. We are all seeking to get the balance right without destroying any creator's rights. I do not think that I could have put it any better than my noble friend Lord Howarth who talked about the mass of material in the British Library-something like 40 per cent of orphan works. The situation was perhaps even more graphically described by the noble Lord, Lord Howard, who referred to the treasure troves. Indeed, they are treasure troves. We have no intention of weakening legitimate copyright.
	The letter in the Times said that any institution can set itself up and after a rudimentary search declare a work orphan. That is not true. My noble friend Lord Howarth described the position correctly. Bodies will have to be authorised and regulated and will have to carry out a diligent search as defined in the government amendments. These safeguards will protect the rights of absent rights owners. If I were them, I could understand why they would write that letter, because if they have any doubts at all, they want to get the point home to the Government. In a desire to express their concern, they have made a rather simplistic, inaccurate description of what will be required. It is not the case that anyone can set up this body, do a quick search and orphan works will be declared. Nothing could be further from the truth.
	I have referred to the subsequent government Amendment 282AZA, in which we took on board comments from the Delegated Powers and Regulatory Reform Committee. I hope that in the light of the explanation and the assurances that I have given, the noble Viscount will feel able to withdraw the amendment.

Viscount Bridgeman: My Lords, I have clearly been unsuccessful in persuading the Minister and the noble Lord, Lord Howarth, that this provision facilitates the exploitation of orphan works incidentally without the expenses payable to a third party. It is a direct contract between the holder of the image and the user. I am sure that this matter will be revisited at later stages. In the mean time, I beg leave to withdraw the amendment.
	Amendment 255B withdrawn.
	Amendment 256
	 Moved by Lord Clement-Jones
	256: Clause 42, page 46, line 8, leave out "or other person"

Lord Clement-Jones: My Lords, in moving Amendment 256, I will speak also to other amendments in the group. Essentially, the amendment is designed to probe the intentions of government regarding those bodies other than collective licensing schemes which the clause appears to permit. The noble Lord, Lord Howarth, is correct that it is entirely valid for many cultural organisations to have the ambition to be licensing schemes. However, no distinction appears to be made between commercial and cultural organisations. That is the fear at the root of the clause. No doubt all of us will have more to say on later amendments. In the absence of proper reassurance from the Government that there is a distinction to make between commercial and non-commercial organisations, the amendment is designed to say that the only licensing organisations should be those run by copyright holders.
	We now seem to have a definition of an orphan work which is much more satisfactory. No doubt we will come to that in a moment when we consider the government amendments. There is no doubt that the clause has been improved, but these amendments are designed to deal with a number of clarifications in terms of the sorts of administrative costs that could be charged by a collective licensing body and so on. A great deal could be said here, and no doubt we will use the amendments as we go through our proceedings to explicitly talk about further aspects. This group of amendments is about the right for others, which are not collective schemes, to be licensed. It is extremely important that the Government give reassurance on that matter, particularly regarding commercial organisations. I beg to move.

Lord Howard of Rising: I agree entirely with the concerns of the noble Lord, Lord Clement-Jones, as to the nature of the licensing bodies. As with so much else in the Bill, there are endless questions to be answered about the make-up, numbers and priorities of the bodies, not least the difference between commercial and other organisations as mentioned by the noble Lord. How many authorisations does the Minister anticipate making in the first round? Are we looking at a few large bodies or will there be numerous smaller ones? Will there be any sort of review process to establish whether an authorised body is operating well or will the Secretary of State rely on industry complaints to identify a problem?
	Noble Lords are also right to highlight the conflict of interest that might well arise if an authorised body's primary concern is to make available as much material as possible. In no way should those provisions be used as a convenient route around a reclusive or unco-operative copyright owner who has no wish to license his material out or engage in a discussion with a licensing body.
	Amendment 273 was suggested by the British Library, which had some understandable concerns about this mysterious person who would be issuing guidance. It wanted to ensure that the guidance will be produced by someone with an understanding of public and private interests and so be able to produce a balanced view. I hope the Minister will take this opportunity to give a little more explanation as to what this guidance might consist of.

Lord Young of Norwood Green: This group of amendments seeks to limit eligibility for authorisation to use or license the use of orphan works. It also seeks to ensure that licences and authorisations for orphan works are non-exclusive. I shall explain the difficulty that this will create.
	A lot of historical and archived material contains one or more orphaned rights. The average number of orphaned works in public sector collections is estimated at some 5 to 10 per cent. The British Library, as we have already been informed, tells us that some 40 per cent of its collection is orphaned while the BBC has roughly 1 million hours of programming which is similarly orphaned and cannot currently be used. That gives the Committee some idea of the scale of orphaned works.
	The inclusion of "other persons" in the current wording of new Section 116A of the Copyright, Designs and Patents Act introduced by Clause 42 would allow these organisations to be authorised to use or license the use of the orphan works in their own archives. Limiting the scope to licensing bodies would mean that these organisations would have no option but to rely on an authorised licensing body when they might wish to operate their own schemes. As I have already said, the conditions for eligibility to use and authorise the use of orphan works will be considered fully as part of the Government's consultation and the regulations made will be informed by it. There will be a full consultation between all appropriate parties before we draw up these regulations.
	We believe that it would not be right at this stage to rule out the possibility of certain large, respected, not-for-profit institutions, particularly those funded by public money, from administering some schemes themselves. For these reasons, too, we do not believe there is any need to restrict those eligible for authorisation or to insert a new definition of licensing body into the Copyright, Designs and Patents Act as Amendment 269 seeks to do. Amendment 256A is unnecessary as new Section 116A(2) of the Copyright, Designs and Patents Act, inserted by Clause 42, provides that both authorisations and licences granted under them are non-exclusive. I hope that Amendment 273 has been addressed by a government amendment that we will address in a later group of amendments. It removes the possibility of orphan works provisions operating by reference to guidance issued by third parties.
	The noble Lord, Lord Howard, asked how many authorised licensing bodies there would be. Our view is that it is not a question of how many, but how well regulated the bodies are. We stress that what is important is not the amount, but ensuring that they are properly regulated and understand that they must take a balanced approach. In their desire to release orphan works, they must not neglect the need to search for the possible owners of the works, regardless of how reclusive they may be. Nobody is suggesting that they should opt out of that process.
	I hope that, with those explanations, noble Lords will not press the amendments in this group.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. I feel that a strong attempt is being made by the Minister and his team to answer the criticisms, but that they are not addressing the crucial point. I hope that the Minister has read the letter in the Times today that expresses some of these fears. There is no issue about cultural organisations. We have all had correspondence from the British Library, the Natural History Museum and the directors of many museums. There is no issue about allowing those organisations to exploit their archives for their own educational or cultural purposes and for orphan works to be dealt with in a proper manner. There would be no great fear if those cultural organisations had their own collecting societies. The problem is the threat of commercial organisations using orphan works without due diligence.

Lord Young of Norwood Green: I thank the noble Lord for giving way. As I looked at my note, I realised that I had not referred to the concern about commercial organisations. I will address the distinction between commercial and non-commercial cultural organisations. We understand that different sectors have different needs. The clause gives us the flexibility to set the right framework for different types of use. After all, there is no such thing as a clearly defined non-commercial body. For example, the BBC covers both commercial and non-commercial uses. The regulations will be flexible enough to allow for this. We must get the regulations right, so that we do not allow a commercial body to exploit works in a way that is unregulated and unlicensed, and disturbs the balance that we are trying to achieve in these regulations.

Lord Clement-Jones: My Lords, we are a long way away from getting a sensible resolution to this. That was a valiant attempt by the Minister. I agree that there are problems with definition, but Clause 42 is such a broad clause. It is controversial in the view of many people; for example, freelance photographers. They, along with the Royal Photographic Society, have made strong representations. Later we will discuss amendments that deal with their interests. The Government must think more carefully about how the clause can be refined. We know that there will be a problem in the other place, where Members will not have time to debate the issues. We will have what is traditionally called the wash-up at the other end. I will say that parts of the Bill will have a much easier passage than this set of proposals. I would hate these proposals to fall in their entirety because I believe it is highly frustrating for the British Library and for other cultural institutions not to have these orphan rights properly spelt out. Gowers talked about orphan rights and so on and so forth. It is not as if there is not some pedigree for orphan rights proposals and for them to be dealt with. The Government have not, however, spelt out in the way they should how these orphan rights will be limited in their scope and how these collecting societies and other licensees-licensors, I suppose I should say-are going to be dealt with.
	As these amendments go through, we will continue to express dissatisfaction with this clause for entirely understandable reasons without wishing to sound as though we are trying to do down the cultural institutions that many of us value very highly.

Baroness Buscombe: My Lords, before the noble Lord sits down, perhaps I may add briefly-I entirely agree with everything the noble Lord, Lord Clement-Jones, has said-that the issue does come down to a different situation, whether it is commercial or non-commercial. I take issue with the suggestion from the noble Lord, Lord Howarth, in the previous amendment that somehow we are not focusing-of course we are-on the important issue of freeing up orphan works for educational purposes and so on. There is a strong issue here and I am so grateful to noble Lords, including my noble friend Lord Bridgeman, for raising these issues in debate. Clause 42 is too simplistic. It is approaching copyright as an all-encompassing law, as if copyright relating to music is the same as copyright relating to images. It is rather more complex than that. Because of that, I am concerned that we may be leaving too much to regulation. I wish there was a way that we could improve the Bill rather than leaving all this to regulation as it is too important to get it wrong. We have waited years to address this issue. Although we are grateful to the Government for taking this issue on board, let us please work at it to get it right.

Lord Young of Norwood Green: My Lords, I want to give some assurance. We understand the importance of getting this right and we will reflect carefully on this debate, especially in relation to the commercial aspects. Just because we are resisting these amendments is not to say that we will not reflect on the issues that have been raised.

Lord Clement-Jones: I beg leave to withdraw the amendment.
	Amendment 256 withdrawn.
	Amendment 256ZA
	 Moved by Viscount Bridgeman
	256ZA: Clause 42, page 46, line 10, at end insert-
	"( ) Regulations under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted."

Viscount Bridgeman: My Lords, this is a disparate group of amendments. Amendments 256ZA and 276A both carry on the criteria for collecting societies and are intended for the benefit of the framers of the regulations. They are designed to ensure that the collecting societies are accustomed by their work to dealing with the sort of institutions for which they will be granting licences. Amendment 259A was our attempt to frame the definition of due diligence, which again has been covered by the government amendment. I hope the Government will consider that amendment with any others when finalising that definition in the later stages of the Bill.
	Amendment 280A is a special amendment relating to libraries. It seeks to ensure that libraries are properly defined as public libraries which are defined in legislation. They are wholly owned trading subsidiaries. It is designed to ensure for instance that institutions such as the British Library fall within that but that possibly the search engines which are there for commercial purposes do not.
	Finally, on Amendment 282A, I detect a whiff of a Henry VIII clause in new Section 116D(2)(b) on the power,
	"to make different provision for different purposes".
	The amendment relates to the subjects that are covered in new Sections 116A and 116B. I beg to move.

Lord Clement-Jones: These amendments raise very important issues. Probably the most important issue, despite the Government's introduction of a requirement for the search to be "reasonable", is how much diligence is applied to the search for an orphan work.
	The European Digital Libraries Initiative set of EU guidelines on what constitutes a diligent search is a remarkable and comprehensive document that is extremely useful. It came rather too late to table an amendment to reflect it, but I believe that "diligent" should be used instead of "reasonable" in relation to a search. One of the ways in which the Government could provide greater reassurance in Clause 42 in particular is by ratcheting up the amount of diligence that is required on a search. The British Library, the National Libraries of Wales and of Scotland and the European Library have been consulted on this document, so I think it has quite a lot of acceptance in the cultural sector. I wanted to highlight it, rather sneakily, in our debate on this set of amendments. I could not speak in our debate on a previous group of amendments, so this was a convenient moment in which to mention this set of guidelines.

Viscount Bridgeman: I omitted to remind the Committee that Amendment 280A is also aimed at commercial partners who seek to piggyback on a public library to get in on the act. The amendment is designed especially to prevent that.

Lord Lucas: I do not really understand what Amendment 280A is about. What is wrong with commercial partners exploiting a copyright?

Lord Clement-Jones: It is one thing to have an extended licensing scheme for a body that already has a particular work that it needs to exploit in different formats over time and another to have a completely new work over which it tries to acquire rights through this process. If the BBC has a programme that it wants to exploit over new media, such as an iPhone, but it does not have the right to do so, I can understand the need for a collective licensing scheme. However, some circumstances need to be narrowed. This is not some free for all. The circumstances must be narrowed to the particular purposes for which the case has been made and not for purposes for which the case has not been made.

Lord Lucas: We are coming up against what will prove to be impossible over the next decade or two: maintaining the idea that the copyright owner has control rather that a right to remuneration. I do not see how control stands in the internet age.

Viscount Bridgeman: For the wholly owned subsidiary that is a trading subsidiary of a charity that cannot trade on its own account, commercial exploitation will be open to that subsidiary in any form.

Lord Young of Norwood Green: My Lords, on Amendment 256ZA, there is no good reason at this stage to exclude, for example, libraries and archives from applying for authorisation to use or license the use of orphan works. I understand the concern expressed by the noble Viscount, Lord Bridgeman, about ensuring that libraries are properly defined. I must admit that in the light of our previous comments about commercial partners, I tend to share that aspect of the contribution of the noble Lord, Lord Lucas, though I am not sure that I would go quite as far as he did on the question of control.
	These organisations have acted as foster parents to large numbers of orphaned works and may have specific expertise that could mean that they are best equipped to use or license the use of orphan works. They may ultimately decide to use licensing bodies to run their orphan works schemes if that proves more efficient, but that is for the market to decide. I know that the noble Lord, Lord Clement-Jones, has been concerned that we are not getting this right in terms of sufficient provision in the Bill for finding the copyright owner before a work is declared orphaned. He has expressed his concern about what is reasonable and diligent and I do not dismiss it.
	However, the Government have tabled amendments to specify what must be done to satisfy the requirement for a reasonable search. Perhaps we will reflect on "diligent", but we have endeavoured to meet that. This includes looking at a number of sources, including licensing bodies, associations of publishers or authors, systems for identifying works of the type concerned, published library catalogues and indices, and public databases. The requirements for the search-this is very important in the light of what was mentioned-are in line with best practice, including the guidelines developed by the European high-level expert on digital libraries, as referred to by the noble Lord, Lord Clement-Jones.
	Licensing bodies authorised to set up extended licensing schemes will be expected to give wide notice of the establishment of their individual schemes. Previous reference to this has been made, including, for instance, schemes concerning different mediums, one of which was photography. They will also be expected to give wide notice of the distribution of royalties. This should give copyright owners, including photographers, ample notice and opportunity to come forward. In addition, it is expected that authorised licensing bodies will have obligations to seek out copyright owners in order to reimburse them for the use of their works. It might be better to say that licensing bodies carrying on extended licensing can be subject to regulation, including requirements to operate a code of practice, and to have an ombudsman for dispute resolution. These safeguards will work to ensure that rights holders' interests are respected. I hope that this more detailed explanation is helpful.
	I have dealt with Amendment 259A, which seeks to insert a requirement for diligent search. In response, as I said on the recommendations of the Delegated Powers and Regulatory Reform Committee, we have tabled amendments which include the insertion of a definition of orphan works into the copyright Act. They provide that a person may classify a work as orphan only after he has conducted an extensive search for the copyright owner. On Amendment 276A, I must stress that extended licensing, where it operates in the EU, is based on the principle of extending the repertoire of a licensing body which represents a critical mass of rights where it is in the public interest to do so.
	On Amendment 280A, we do not see any justification for limiting the availability of licences to public libraries. We consider that licences available under extended licensing schemes should be available to all. Similarly, on Amendment 275A, there appears to be no justification for providing in proposed new Section 116B of the copyright Act that extended licensing cannot be used in relation to certain categories of works. I reassure the noble Lord by reiterating that the Government will consult fully on the exercise of these powers in proposed new Section 116B of the copyright Act before they are exercised. This consultation will include issues such as conditions for authorisation and the extent to which a licensing body is representative of copyright owners within a certain area. It would be premature to define representation requirements on the face of the Bill. For that reason, I would ask the noble Lord to consider not pressing his amendment.
	Amendment 282A seeks to limit the exercise of the power to make different provisions for different purposes to proposed new Sections 116A and 116B and Schedule 1. That limitation already exists in proposed new Section 116D(1). I hope that this will reassure the noble Viscount, Lord Bridgeman, and persuade him not to press this amendment.

Viscount Bridgeman: I am grateful for the Minister's reply to a wide variety of amendments. I beg leave to withdraw the amendment.
	Amendment 256ZA withdrawn.
	Amendment 256A not moved.
	Amendments 257 and 258 had been withdrawn from the Marshalled List.

Amendment 259 and 259A not moved.
	Amendment 260
	 Moved by Lord Clement-Jones
	260: Clause 42, page 46, line 14, leave out "may" and insert "shall"

Lord Clement-Jones: I must have spoken already to Amendment 260 and to some of the other amendments in this group. These amendments are designed to tighten up the way in which royalties will be paid. Sometimes debates on "may" and "shall" are somewhat fruitless but this House is very good at them. As we need reassurance for these rights holders, despite what the noble Lord, Lord Lucas, said, it is extremely important for the freelance writer, composer, creator, photographer and so on to have the reassurance that there will be a payment of royalties and that all these other amendments to the clause will be made. The Minister has so far been quite sympathetic to some of the points made. I hope that, as part of his review of this clause, this sort of detail will be considered. I beg to move.

Lord Lucas: In case I was not clear enough earlier, I entirely support the amendment.

Lord Howard of Rising: The lack of detail in the Bill regarding the money issue is worrying. The Government have indicated that the matter will be resolved by consultation. However, as earlier provisions in the Bill show, when it comes to the fair division of costs and revenues, sometimes there is no agreement. If there is a deep and irreconcilable conflict between copyright owners and wannabe licensees, the Secretary of State will have to pick a middle ground. Can the Minister give us any more details of what sort of principles the Government will follow when passing regulations in this area? Who will ensure that the administration costs charged by the licensing bodies are fair and not excessive? Will there be any process of checking that royalties are being collected and retained properly? How long does the Minister think that bodies should be required to hold on to those royalties?

Lord Young of Norwood Green: Amendments 261 and 262 seek to insert some of the detail on orphan works into the Bill. The Government have had ongoing discussions with stakeholders on this area of policy and have committed to a full and wide-ranging consultation to inform the detail of the orphan works regulations. This consultation will allow the Secretary of State to ensure that the use of the powers in Section 116(3) results in a workable system for the deduction of costs that are reasonable, and it will also deal with the issue raised in Amendment 262 as it will inform the correct determination of the period for which royalties should be held.
	Amendments 264 and 267 seek replace the word "may" with "shall" to make it mandatory for certain matters to be included in the secondary legislation covering the operation of orphan works schemes. Permissive language has been used to reflect the Government's commitment to consultation before finalising the regulations.
	On the specific points made by the noble Lord, Lord Howard, on royalties and costs, we shall write not just to him but to all who have participated in this debate to see whether we can put a bit more flesh on the bones. In light of those comments and assurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: I thank the Minister for his interesting reply that the language cannot be in Bill so that the consultation can be that much more flexible. There are circumstances where having something in the Bill provides the kind of reassurance necessary, and I suspect that any rights holder consulted on this aspect would say that he would like to have some certainty. I do not think that the Government are doing anybody any favours by not having this language in the Bill. I hope-as with other aspects of this clause, and it is becoming quite a long list-that the Minister will consider this for inclusion despite the point he made about wanting to have permissive language, because that is not something that all those rights holders would want. I do not wish to torture the Minister any further, so I beg leave to withdraw the amendment.
	Amendment 260 withdrawn.
	Amendments 261 to 265 not moved.
	Amendment 265A
	 Moved by Lord Young of Norwood Green
	265A: Clause 42, page 46, line 22, leave out "a work ceases to be an orphan work" and insert "an interest in copyright ceases to be included in an orphan works register (see section 116BA)"

Lord Young of Norwood Green: My Lords, we now move on to a large group of government amendments to Clause 42 that take into account a number of discussions and comments. I shall not go through each and every amendment in detail as there is a substantial amount of repetition between the parts and I take into account the time, but I feel it is important to outline in brief the purpose of the amendments and their intended effect.
	This clause as originally drafted was intended to strike the right balance, as we have said many times during this debate, between marking the limits of what the Government consider appropriate in this area and maintaining enough flexibility to allow full consultation with affected parties before details are fixed in the subsequent regulations. The Delegated Powers and Regulatory Reform Committee highlighted a few areas where it thought we had not quite got the balance right, and these amendments are intended to address those concerns.
	In brief, these amendments provide for the inclusion in the Bill of a definition of an orphan work, subject to amendment by regulations made by affirmative procedure. This will provide greater certainty for those concerned about the scope of these provisions. The amendments remove the ability of the Secretary of State to refer to guidance produced by a third party when defining "orphan works" in secondary legislation. The definition is instead detailed in the Bill. The amendments limit the power in this clause for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by regulations, so that it can be used only to make consequential amendments. This ensures that the power is focused only where it is needed and appropriate.
	The amendments require that the first regulations made under this power-that is, the creation of the first orphan works regulations, the first extended collective licensing regulations and the first exercise of the powers to introduce codes of practice and enforcement provisions for these codes and for the regulation of licensing of orphan works and extended licensing-are subject to the affirmative procedure. That was a long sentence and will need careful reading in Hansard. I think it makes it clear that all those regulations, codes and enforcement provisions are subject to the affirmative procedure, but noble Lords will have check Hansard. The amendments introduce a maximum penalty of £50,000 where the requirements for authorisation under Clause 42 are breached. Finally, there are equivalent amendments for performers' rights. Amendment 299D introduces the same amendment for performers' property rights.
	The Government have listened to concerns and we have proposed some substantial amendments to address these. The amendments clarify the scope of these provisions and strengthen the safeguards that surround their use while maintaining the function and purpose that was originally envisaged, which is widely supported by our cultural and creative sectors. I beg to move.

Viscount Bridgeman: I have two questions on Amendment 282AZA in this group. First, each licensing body has to maintain its own register, so will there be a central register accessible by all? Secondly, what period of notice is the licensing body required to give? I am envisaging a small photographer who may have just missed the announcement. How long will it remain on the public record?

Lord Howie of Troon: I apologise to my noble friend for entering this lengthy debate so late in the day. I do so at the instigation of the Periodical Publishers Association of which I am the vice-president. It is an unpaid post and not a very onerous one.
	The PPA wants to draw attention to Amendment 282AZA. While it agrees that the licensing of orphan works is needed, it wants to know what an orphan work is. That brings us to the definition. The PPA thinks that the definition suggested in the amendment is vague and useless in any real sense. I had thought that since this relates to the Copyright Act 1988 there might have been a definition there. I could not find one, and I certainly do not remember one while the Act was being debated. The PPA considers that the definition should be much more precise than that proposed by the Government and that an orphan work should be a published copyright work where it is impossible after a reasonable search to establish the identity of or to locate the author or copyright owner of that work. That is not in the amendment. I do not want to go on about it but I hope that the Government will refer back to the PPA and discuss it.
	While I am at it, let me say briefly that the PPA believes that the proposal to introduce extended collective licensing, which is in the same part of the Bill, is contrary to the fundamental principle that owners of literary and artistic works must consent to the exploitation of their work when the owner is known and can be located. I shall not detain the Committee any longer but I hope that my noble friend will reflect on the views of the PPA and reconsider the definition in the Bill.

Lord Howard of Rising: I thank the Minister for tabling the amendments which go some way to addressing the many concerns about the provisions. Amendment 277 is a probing amendment suggested by the British Library which is concerned that since much of the material it hopes now to be able to use has never been published, it will not be excluded from being designated ineligible under new Section 116A as it is under new Section 116B. I should be grateful if the Minister could give some guidance on that point.
	Returning to the government amendments, I am interested to know what a reasonable search would consist of. How much time or money would a body have to spend to fulfil the requirements? Stakeholders have indicated that they spend a little less than half a day on seeking copyright owners. Is that the sort of effort the Government are thinking of? I should also welcome a clarification of proposed new Section 116BA(2)(b) to be inserted in the Copyright, Designs and Patents Act 1988 under Amendment 282AZA. What evidence will be required to meet this threshold?
	As I understand it, there would be a multitude of registers, each one to be maintained by a single licensing body. Is that correct? Does the Minister have any intention of connecting the registers so that there is a one-stop shop for copyright owners to check whether their works have been mistakenly included? It would also be useful for would-be licensees to access the full range of the material that will I hope be opened up by these provisions. Finally, moving more of the regulations into the affirmative procedure is to be welcomed.

Lord Clement-Jones: My Lords, I welcome some of these amendments from these Benches. Obviously, a number of amendments already have formed themselves in the minds of Committee Members, as we have discussed, particularly in terms of the kinds of search required. I accept that the Government have addressed themselves to some of those issues, but I do not want to lull the Minister into a false sense of security so that he thinks that we have accepted these amendments and that they are completely apposite. A great deal more work needs to be done.

Lord Lucas: I support some of what my noble friend said. These days, it is not necessary to create a single register, but format requirements need to be imposed on the registers so that a single search engine can search them all with consistency.

Lord Young of Norwood Green: My Lords, I shall endeavour to respond to the points made, first, in relation to Amendment 277 moved by the noble Lord, Lord Howard. The amendment seeks to include unpublished works in the extended licensing scheme. Including unpublished works would mean, for example, that anyone who has ever written anything could have their work included in an extended licensing scheme unless they opted out. This could put a burden of opting out on a large proportion of the population. It would also create a risk of the system collapsing under the weight of the opt-out notifications. For those reasons, unpublished works were excluded.
	I was interested in the point made by the noble Lord, Lord Lucas, on the central register and we will write to him on that. We will also write in relation to the period of notice and the licensing authority. My noble friend Lord Howie did not like our definition of an orphan work. He did not say that it was indeterminate, but he thought that it was too vague. We will look at a more precise definition.
	I may have here some inspiration from the Box, which might enable me to answer a few more questions. On the central registering body and the one-stop shop, the intention is that each authorised body will keep a register of orphan works which can be accessed by copyright owners. The point made by the noble Lord, Lord Lucas, now has even more relevance. Perhaps we will come back to him on that.
	I have tried to answer all the points that have been raised. Perish the thought that we should ever be lulled either into a false sense of security or complacency. There is still some way to go. The sheer delights of Report stage loom ahead, which is why we welcome the comments that have been made. I hope that the noble Lord, Lord Howard, will feel able not to move Amendment 277.
	Amendment 265A agreed.
	Amendments 266 to 268 not moved.
	Amendment 268A
	 Moved by Lord Young of Norwood Green
	268A: Clause 42, page 46, leave out lines 26 to 30
	Amendment 268A agreed.
	Amendments 269 to 273 not moved.
	Amendment 274
	 Moved by Lord Clement-Jones
	274: Clause 42, page 46, line 34, at end insert "licensing"

Lord Clement-Jones: My Lords, it is so long since we started this Bill that I am not sure whether these two amendments are of any significance. I have no doubt that if they threaten the architecture of the Bill, the Minister will tell me. They are designed to clarify what kind of body we are talking about and to make sure that we are clear that it is a licensing body. Their intention is no more sinister than that. I beg to move.

Lord Howard of Rising: I declared an interest at the start of Committee but I should declare again that I am a literary executor. I have a great many concerns about the proposed new Section 116B and will be listening with interest to the Minister's responses to the next few groups. Proposed new Section 116A targets a known problem that everyone wishes to see resolved. I am far less convinced about the need for such broad powers as are set out in proposed new Section 116B. Is there any evidence that copyright owners are proving incapable of handling their own rights? Are these provisions designed to help copyright owners assert their rights or are they to make it easier for would-be licensees to override the restrictions and limitations copyright owners wish to put on their work. It would be quite wrong and contrary to the spirit of the first part of the Bill if a natural desire on the part of the public-even for unimpeachable reasons such as education-to use material that is owned by someone should ever be allowed to override a copyright holder's right to withhold the material. I am sure these provisions do not intend to do that but without stringent safeguards on the licensing bodies, on the types of material that fall under these schemes, and on the requirement to engage with copyright owners, it is quite possible that such abuses will occur. I believe, therefore, that a clear code of practice that covers these points is essential and I hope the Minister will agree.

Lord Young of Norwood Green: My Lords, proposed new Section 116B(1) comprises one sentence which begins by referring to a "licensing body". The sentence subsequently refers to the licensing body as the "body". It is the same. The addition of the word "licensing" is therefore unnecessary and I ask the noble Lord, Lord Clement-Jones, to consider withdrawing Amendments 274 and 275.
	Amendment 276 would require regulations made under powers to be introduced by Clause 42 to provide that licensing bodies must adopt a code of practice before they can be authorised to operate an extended licensing scheme. I can assure the noble Lord, Lord Howard, that there is no way we wish to see licensees overriding the rights of copyright owners.
	Licence bodies must adopt a code of practice before they can be authorised to operate an extended licensing scheme. This can already be achieved through use of the powers currently contained in the Bill. Schedule A1 enables the Secretary of State to make regulations requiring licensing bodies authorised to set up extended licensing schemes to adopt codes of practice complying with requirements in the regulations. Is there any evidence that copyright owners find it difficult to exercise their rights? The exclusive right of the copyright owner to control their work is kept intact through the opt-out mechanism. In being able to opt out at any time, the copyright owner retains total control of their work. I hope that that is a further assurance. In the light of these assurances, I hope that the noble Lord will feel capable of withdrawing his amendment.

Lord Howard of Rising: I cannot see, although I am sure that it is there somewhere, where the copyright owner has the right to opt out at any time.

Lord Young of Norwood Green: That is what I am reliably informed-that that will be the case. I am looking to my Box for inspiration, and they are nodding. We will draw the noble Lord's attention to where that is in the Bill explicitly in writing.

Lord Clement-Jones: My Lords, I thank the Minister for his response. I am sure that we all look forward to hearing a promise of a torrent of letters from the department, as the night progresses. I beg leave to withdraw the amendment.
	Amendment 274 withdrawn.
	Amendments 275 to 277 not moved.
	Amendment 277A
	 Moved by Lord Davies of Oldham
	277A: Clause 42, page 46, line 37, after "work" insert ", unless it is a broadcast or a work included in a broadcast"
	Amendment 277A agreed.
	Amendment 278
	 Moved by Lord De Mauley
	278: Clause 42, page 46, leave out lines 38 and 39

Lord De Mauley: This is a brief probing question to elicit more details from the Minister as to what he would consider an appropriate system for establishing whether a copyright owner has withdrawn consent for being included in one of these schemes. Will there be an equivalent of the orphan works register for collectively licensed works? If not, how is a copyright owner to know if someone is licensing off his material? Secondly, what sort of notification process will it be necessary for a copyright owner to negotiate to have his material removed from a scheme? Will he be able to withdraw the rights from some of his works, but not others? Will he be able to put some limited restrictions on them, such as for them not to be licensed to certain formats or certain people? I shall be quite happy for most of this to be answered in writing. I beg to move.

Lord Lucas: And will he have control of the price at which his work is licensed?

Lord Young of Norwood Green: My Lords, the provisions on extended licensing preclude the inclusion of works for which the copyright owner has given notice that they want them to be excluded from an extended licensing scheme. The importance of the opt-out is that copyright owners retain control of their work and cannot be compelled to have their works licensed under a scheme. There is no overriding policy reason to interfere with the copyright owner's control. In relation to the point about partial withdrawal for a body of work, I am seeking confirmation from the Box, but I am not getting anything. Communication is a wonderful thing-when it works. I am pretty sure that we can confirm that in writing, together with another point which we will need to deal with. I think I have given plenty of assurance on the question of control, the opt-out and the extensive nature of that, but where I have not we will explain further in writing. In the light of the explanation, I hope noble Lord will feel able to withdraw his amendment.

Lord De Mauley: My Lords, I thank the Minister. Another important question is how you opt out, but in anticipation of his further response, I beg leave to withdraw the amendment.
	Amendment 278 withdrawn.
	Amendment 279
	 Moved by Lord Clement-Jones
	279: Clause 42, page 46, line 38, after "rights" insert "specifically"

Lord Clement-Jones: My Lords, this is one of the most interesting parts of the Bill, because there is some level of bafflement about the precise circumstances in which extended licensing is appropriate. As I mentioned earlier, the clearest example I have been given is clearance of rights in a backlog of programmes owned by the BBC. Some say that current arrangements pretty much allow for that, because if collecting societies have a particular set of rights cleared, they will find it relatively straightforward to clear an additional set of rights. It would be useful to hear from the Minister the kinds of bodies he envisages would want to take advantage of extended collective licensing.
	In that context the question arises of whether it is only orphan works which are the issue. If this is designed to go further than orphan works, what kind of works are we talking about? Amendment 280 is designed specifically to make sure that works other than orphan works are excluded from the scheme. We are dimly looking through to the Government's intentions behind this, but if clarity was needed for proposed new Section 116A, even greater clarity is required for proposed new Section 116B. I beg to move.

Lord Lucas: My Lords, in order to shorten my speech today, I had better send a letter to the Minister on Amendment 282. I shall be interested in the replies to the amendment tabled by the noble Lord, Lord Clement-Jones.
	The issue harks back to Clauses 4 to 17, and my efforts to persuade principally the music and film industries to come up to date a bit. At present, there is an attempt, organised by the Association of Independent Music, to promote a scheme involving music rights holders and an ISP to offer a viable alternative to piracy-something that will be easy, appeal more and will not be too expensive. If the noble Lord is not aware of this, his colleagues will be. They will also be aware that some of the major rights holders are proving extremely slow to co-operate in this and similar initiatives. I hope that much of the Government's mission in pushing this Bill forward is to encourage the industry to adapt, and to make it clear to the industry that, in contrast to bullish statements being made in the United States, this Bill will not solve the piracy problem for all time. It will not solve the problem: it is a breathing space and it has to be used to adapt.

Lord De Mauley: My Lords, I share a number of these concerns and, in particular, I support Amendment 280. As we have said before in these debates, it seems almost absurd to have one part of the Bill devoted to protecting copyrights and another devoted to taking them away. I simply do not understand why safeguards inserted to protect copyright owners from having their works mistakenly classified as orphan are not extended to this proposed new section.

Lord Young of Norwood Green: My Lords, the extended licensing proposals allow the copyright owner to opt out of an extended licensing scheme at any time. If the copyright owner wants all their works to be removed from a licensing scheme, there would be no need for them to specify them, but if they wanted just one or a few rights to be removed, they would naturally need to specify them in order for the collecting society to identify those rights and remove them from the scheme. That actually answers a question raised by the noble Lord, Lord De Mauley in the previous debate. I suggest that there is no need to add "specifically" and I hope that this will persuade noble Lords not to press their amendments.
	I welcome what I believe is the intention of Amendment 280-to protect the interests of copyright owners who may be affected by the establishment of an extended licensing scheme. I assure noble Lords that the powers in the Bill will allow for regulations requiring the Secretary of State to consult with those likely to be affected before authorising such a scheme. We intend to consult as widely as possible, allowing us to take account of the views of different interest groups.
	Regarding Amendment 281, there are powers in new Section 116A for the Secretary of State to determine in regulations how long royalties collected for the use of orphan works will be kept and for their disposal if the owner is not identified at the end of that period. Those powers may be extended to cover orphan works licensed under an extended licensing scheme, so it is unclear why this provision would need to apply to royalties from works which are not orphan but are licensed under extended licensing schemes. An authorised licensing body will be able to distribute royalties to owners of works which are not orphan, so it is unnecessary to make provision for the distribution of those sums if they are unclaimed.
	The noble Lord, Lord Clement-Jones, asked whether we were intending this to go beyond orphan works; the answer is yes. Extended licensing is not a new business model that will be imposed on different sectors. Any licensing body wishing to extend its repertoire will need to make a business decision to do so, presumably with the consent of the rights holders on behalf of whom it acts. It will then need to make a specific application for authorisation from the Secretary of State, who may grant that authorisation if certain specified criteria which have been consulted on are met. The Bill does not give the Government the power to impose extended licensing schemes on any sector that they wish.
	Amendment 282 requires the Secretary of State to put forward proposals on the use of the powers introduced by Clause 42 to make regulations providing for extended licensing for,
	"music, film and broadcast works in electronic form ... within one year",
	of the Bill becoming an Act. I have made it clear that the Government are committed to consulting before introducing regulations under these powers.
	The noble Lord, Lord Lucas, noted the fact for the Committee that music rights holders and an ISP will be coming up with an alternative to piracy; we await that with interest and have said that we welcome those developments. The noble Lord is right to describe the nature of the Bill as a breathing space; in the world of IT, we know that there is no such thing as a stasis, so his assessment is probably right-and that is probably why Clause 17 somehow came into being, but I hesitate to mention that again. I hope that, in the light of those assurances and explanations, the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that reply, which illustrated some interesting and useful information and will be required reading in Hansard. The fuzziness still remains. The Minister-I think I quote him correctly-referred to certain specified criteria which will be the subject of consultation. I feel as though I am dealing with a sponge. This is the very opposite of certainty. Maybe, it is because we do not have the benefit of the consultation document in front of us. Maybe, it is because those criteria were not included in the Minister's speech. The more hard-edged the Minister can be about the nature of these particular beasts, which many rights holders believe threaten their economic viability, the better. I live in hope. In the mean time, I beg leave to withdraw the amendment.
	Amendment 279 withdrawn.
	Amendments 280 to 282 not moved.
	Amendment 282AZA
	 Moved by Lord Faulkner of Worcester
	282AZA: Clause 42, page 46, line 42, at end insert-
	"116BA Orphan works: supplementary
	(1) A work is an orphan work, for the purposes of an authorisation given or to be given to a person (an "authorised person") under section 116A or 116B, if any interest in copyright in the work is entered in a register maintained for the purposes of this section by that person (an "orphan works register").
	(2) An authorisation in respect of an orphan work does not affect the need for any consent-
	(a) from the owner of an interest not entered in the authorised person's orphan works register (except in the case of an authorisation under section 116B that extends to other interests), or
	(b) from the owner of an interest that is entered in that register, if the authorisation does not apply to that interest.
	(3) An authorised person must not enter an interest in an orphan works register unless the authorised person-
	(a) has complied with the requirements of subsection (8) in respect of that interest and has not found the owner of the interest, or
	(b) has reasonable grounds for believing that another person has complied with those requirements in respect of that interest and that the owner of that interest has not been found.
	(4) An entry in an orphan works register relating to an interest in copyright must include the record kept in accordance with subsection (8)(c).
	(5) If an authorised person finds the owner of an interest entered in that authorised person's orphan works register, the authorised person must remove the entry.
	(6) If in relation to an interest entered in an authorised person's orphan works register, the authorised person-
	(a) is aware that the requirements of subsection (8) were not complied with, or
	(b) is aware of information that makes it no longer reasonable to rely on what was done in compliance with those requirements,
	the authorised person must comply as soon as possible with the requirements of subsection (8) or remove the entry.
	(7) A failure by an authorised person to comply with any of subsections (3) to (6) in relation to an interest to which an authorisation applies-
	(a) does not affect the authorisation in relation to that interest, except so far as regulations may provide, but
	(b) is actionable as a breach of statutory duty owed to the owner of that interest.
	(8) The requirements of this subsection in respect of any interest in copyright are-
	(a) to carry out a reasonable search to find or, if necessary, to identify and find, the owner of the interest,
	(b) after the search, to publish notice of the proposal to enter the interest in an orphan works register, in a way designed to bring the proposal to the attention of the owner of that interest, and
	(c) to keep a sufficient record of the steps taken under paragraphs (a) and (b) and of the results of those steps.
	(9) For the purposes of subsection (8)(a) the person carrying out the search must in particular-
	(a) make such use as is reasonable of sources of information, including sources within subsection (11), relating to the work's apparent country of origin, and
	(b) have regard to any presumptions under section 104 or 105 that would apply in relation to the work in any proceedings.
	(10) The sources referred to in subsection (9)(a) are-
	(a) licensing bodies;
	(b) associations of publishers or authors;
	(c) systems for identifying works of the type concerned;
	(d) published library catalogues and indexes;
	(e) public databases, including public records that may indicate successors in title.
	(11) For the purposes of subsection (9)(a) a work's apparent country of origin is the country which the person carrying out the search reasonably believes is most likely to be-
	(a) the country of the work's first publication, or
	(b) if the work has not been published, the country with which its making is most closely connected.
	(12) Any guidance issued by the Secretary of State must be taken into account in deciding whether the requirements of subsection (8) have been complied with.
	(13) The Secretary of State may by regulations amend any of the preceding provisions of this section."
	Amendment 282AZA agreed.
	Amendments 282ZA to 282ZD not moved.
	Amendment 282ZE
	 Moved by Lord Faulkner of Worcester
	282ZE: Clause 42, page 47, line 9, leave out "and 116B" and insert "to 116BA"
	Amendment 282ZE agreed.
	Amendment 282A not moved.
	Amendment 283
	 Moved by Lord Clement-Jones
	283: Clause 42, page 47, leave out line 13
	Amendment 283 agreed.
	Amendment 283ZA
	 Moved by Lord Faulkner of Worcester
	283ZA: Clause 42, page 47, line 14, at end insert-
	"( ) The power referred to in subsection (2)(a) to make consequential provision includes power to amend this Part."
	Amendment 283ZA agreed.
	Amendment 283A not moved.
	Amendment 283B
	 Moved by Lord Faulkner of Worcester
	283B: Clause 42, page 47, line 15, leave out "and 116B" and insert "to 116BA"
	Amendment 283B agreed.
	Amendment 283C
	 Moved by Lord Faulkner of Worcester
	283C: Clause 42, page 47, line 20, leave out from beginning to "may" in line 21 and insert-
	"(5) Subsection (6) applies to a statutory instrument containing any of the following-
	(a) the first regulations made under section 116A;
	(b) the first regulations made under section 116B;
	(c) the first regulations made under paragraph 1 of Schedule A1;
	(d) the first regulations made under paragraph 3 of Schedule A1;
	(e) regulations under sections 116A to 116BA or Schedule A1 amending section 116BA or another provision of this Part.
	(6) The statutory instrument"
	Amendment 283C agreed.
	Amendment 284
	 Moved by Lord Lucas
	284: Clause 42, page 47, line 23, at end insert-
	"116E Registry of copyright
	(1) OFCOM shall maintain on the web a registry of other websites where copyright material may be located.
	(2) OFCOM shall, at the request of the website owner, add a website to the registry if that website complies with OFCOM's rules for such additions as are then in force.
	(3) The rules under subsection (2) shall require-
	(a) that each copyright work on the site may be readily identified from information openly provided on that site,
	(b) that accurate and complete information on how to licence each copyright work is provided on that site,
	(c) that each copyright work on that site is available for licence, and that there are arrangements in place for binding arbitration of disputes relating to the extent or the cost of a licence,
	(d) that the architecture of the site allows the search facilities that OFCOM provides under subsection (4) full access.
	(4) OFCOM shall maintain, and may charge for the use of, facilities to enable a user to establish whether a copyright work of a given description exists in any of the websites listed on the registry maintained under this section, and to provide a certificate of what such works exist or that no such work is to be found.
	(5) No claim may be made under section 116A that a work is an orphan work if a certificate under subsection (4) has not beeen obtained.""

Lord Lucas: My Lords, this is the reflection of the earlier amendment of my noble friend Lord Howard. Just as I agree with him that those running registries should make it easy for people to establish what is in them, those holding and wishing to assert copyrights should make it easy for people to find them. I suggest that there should be a system run by Ofcom but not costing it anything, which allows those who wish to ascertain who owns the copyright of a particular piece of material to perform a simple search and find the answer. In the course of time this should mean that not only is it easy for a little photographer or a little creator of any kind to register the copyright in their work so that it cannot be overlooked by even the most short-sighted of exploiters of that copyright, but it becomes easy and simple for those who wish to establish who owns the copyright to find the answer. This is really only possible with modern technology where you can have image search engines and fast-tech search engines and you can characterise music. It would not be a Google search but a search provided by a specific engine provided by Ofcom, licensed by Ofcom and paid for by people who wish to search for copyright. It is perfectly technically feasible and would save people a lot of trouble. I beg to move.

Lord Young of Norwood Green: I recognise where the noble Lord is coming from, but we feel there are already many databases of copyright information available online, such as the excellent ARROW project, with which I have no doubt the noble Lord, Lord Lucas, is familiar. Where there is a publicly accessible database of this sort, it would be sensible to search it before a work can reasonably be considered "orphaned".
	The government amendments that we have moved recognise that such databases are an invaluable resource for those seeking to identify the owners of works, and require that they be searched before any work can be declared orphan. The government amendments also introduce a requirement for those administering an orphan works scheme to maintain a register, but I think that is slightly different from what is envisaged by the noble Lord, Lord Lucas, with this amendment.
	The maintenance of registers of orphan works with details of the diligent search that has been undertaken will ensure that the process is properly adhered to and documented. This is not the same as requiring Ofcom to create and maintain what would amount to a shop window of online works available to license. While, as I say, we understand the intentions, we do not believe that they are appropriate for the reasons I have given. In the light of those, I trust that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.

Lord Lucas: My Lords, I will read what the noble Lord has said. For now, I withdraw the amendment.
	Amendment 284 withdrawn.
	Amendment 284ZA
	 Moved by Lord Faulkner of Worcester
	284ZA: Clause 42, page 47, line 29, leave out "116A(6)" and insert "116BA"
	Amendment 284ZA agreed.
	Amendment 284A not moved.
	Amendment 284B
	 Moved by Lord Davies of Oldham
	284B: Clause 42, page 47, line 31, leave out "1A(6)" and insert "1BA"
	Amendment 284B agreed.
	Debate on whether Clause 42, as amended, should stand part of the Bill.

Lord Clement-Jones: My Lords, I do not wish to prolong the agony but I have given notice that I wish to oppose Clause 42 standing part. It is possible simply to sketch out some of the issues that have been raised in the debate. I know that the Minister has taken note, and I very much hope that it is not necessary to go into any great detail about the failings of Clause 42, despite many of the welcome government amendments. The problem is that the distinction is not made between cultural and commercial uses.
	There is a big issue as far as the profession of photography is concerned, and I have had quite a lot of communication with the Royal Photographic Society on this issue. It clearly represents the interests of its members. It believes that because it is so easy to strip out information about copyright attribution from photographs that are put on the web, for instance, many hundreds of orphan works are being created every week. It feels that this problem is of particular significance to its profession. It believes that these provisions would not act in its best interests and that they will be a way in which commercial interests will be able to pay less than the market price for the use of such photographs.
	One of the flaws in all this is the fact that, alongside the provisions about orphan rights, no provision is made for moral rights or rights of attribution to be added. The noble Viscount, Lord Bridgeman, has an amendment about moral rights. One of the underlying issues is that very little distinction is made here between modern and historic collections. Until the recent government amendments, there was no proper definition of "orphan work". Even now, as we have said, there is too little emphasis on the need for proper, diligent investigation of ownership of copyright before orphan work provisions can take effect. In the last group of amendments, we described how there is insufficient explanation of exactly how extended licensing will operate, which bodies are intended to operate it, what works it is meant to apply to, and so on.
	All of us have been at pains to point out that generally the cultural sector has made a good case for new orphan works provision. Indeed, the Gowers report did so. I mentioned before that the British Library, the Natural History Museum, the National Museum Directors' Conference and the Association of Independent Museums have been eloquent in their representations. We want to see them being able to use their archival material for educational and cultural purposes. They have quoted many convincing examples of where these provisions are needed. The big question is how and whether the commercial sector should take advantage of the provisions. The key issue is that on the face of it, the clause is far too wide. There are fears among many creators-writers and photographers in particular-that this will be a means of using their works at a knock-down price on the basis that they have been temporarily classified as an orphan work. There are aspects of the clause that we can fully support, but the Government need to pare it down to its essentials before we can fully support it.

Viscount Bridgeman: My Lords, the noble Lord, Lord Clement-Jones, an amendment or two ago, referred to the flabby brief that we have because so much of the regulation will be left outside the Bill for secondary legislation. It is the usual bleat from the Opposition that this happens. We accept that time has been very short on this one, and framing of the regulations has not been possible to date. I make a plea that if the Government were able on Report to bring some of the substance of the regulations-I do not expect that it will be all of them-on to the face of the Bill, it will be easier to have a meaningful debate on Report.

Lord Young of Norwood Green: My Lords, this clause helps modernise copyright licensing. First, orphan works, as we all now know, cannot at present be used without the specific permission of the copyright owner. The new provision will enable large numbers of potentially valuable cultural works to be used on a regulated and licensed basis, with money held to reimburse the copyright owner if they later come forwards. The clause introduces a definition of "orphan works" and regulations made under these powers will contain the detailed procedures for the use and licensing of works so classified. Orphan works are works protected by copyright but for which the copyright owner cannot be identified or traced even after a diligent search. That is a succinct definition.

Lord Clement-Jones: Is the Minister saying that that definition is included in the Bill? If not, should it be included?

Lord Young of Norwood Green: We said we would reflect on the definition in light of the previous contribution.
	The second provision is to allow for extended licensing schemes to be authorised by the Secretary of State. Currently, rights clearance can be complex and time consuming. We aim to help simplify and update the process by allowing an authorised licensing body, under appropriate circumstances, to grant copyright licences on behalf of copyright owners from whom it does not have specific authority to act. As with orphan works, those authorised to operate extended licensing schemes will be subject to safeguards to achieve a balance between the interests of creators, users and stakeholders.
	Thirdly, where a licensing body's own system of self-regulation is failing, the Secretary of State will have the power to require the licensing body in question to adopt a code of practice that meets requirements in the regulations. Our intention here is that licensing bodies should be subject to these requirements if they are authorised to license orphan works or to carry out extended licensing. All other licensing bodies should put in place systems of self-regulation. Fourthly, equivalent powers are introduced for performers' property rights, together with a definition of "orphan rights".
	On consultation before secondary legislation is drafted and before the first schemes are set up, we recognise that different sectors have different needs. That is why we have tried to draft this legislation to give flexibility in the way orphan work schemes are set up and run. If we find that certain types of work, such as contemporary photography, cannot be included in this framework without causing harm to rights holders then we will have the flexibility to exclude them from any schemes. However, this is not something we can say today and it will be consulted on widely before regulations are drafted.
	On moral rights, we recognise that some creators have concerns about the current moral rights system. We also know that many users of copyright material will be equally concerned about any change to that system. Intellectual Property Office officials have carried out an informal review of this issue and will continue to work to identify any evidence for change. It would not be right to make any changes to the moral rights system until we have evidence from all sides of the debate.
	This clause will ensure that we are able to access our cultural heritage and utilise modern licensing schemes, while still, as I said, ensuring that copyright owners and owners of performers' rights control the use of their work and are paid for that use if they wish. Nothing in these provisions is intended to undermine that principle. Indeed, the inclusion of an opt-out for rights holders in both cases will ensure that they retain control of their rights. The Government intend to consult extensively on the detail of regulations before they are made by the Secretary of State under these powers.

Lord Clement-Jones: I will respond briefly. I thank the Minister for his reply. Despite the fact that we have had a long debate over the past hour and a half on Clause 42, there were some new elements to his reply that I found welcome. I refer in particular to the response about the possible exclusion of commercial photographers if the consultation goes a certain way. There may be a quid pro quo here. The Minister said that it would not be right to introduce moral rights without proper consultation. The quid pro quo may be that commercial photographers are excluded until such time as moral rights are introduced. The Minister was almost juxtaposing that himself: it is an interesting concept. His reply raised some useful points and I look forward to him coming back at Report with a blinding new set of amendments. I will not press my opposition to the clause standing part.
	Clause 42, as amended, agreed.
	Amendment 285
	 Moved by Lord Lucas
	285: After Clause 42, insert the following new Clause-
	"Format shifting
	(1) The Copyright, Designs and Patents Act 1988 is amended as follows.
	(2) In section 17, at the end insert-
	"(7) Where a person acquires the right to use a copyright work in electronic form for his personal use, he also acquires the right to copy that work into other electronic formats for his personal use.
	(8) Regulations may specify a sum upon payment of which the Registrar of Public Lending Right or a Licensing Scheme may grant a person the rights in subsection (7) in respect of works acquired by him before the coming into force of this section.""

Lord Lucas: My Lords, unless the Committee objects, I will telescope proceedings by speaking also to all my remaining amendments. I hear no objections: this is good. The amendments have three things in common. First, I will not move them this evening because they are all probing amendments. Secondly, I cannot imagine that under any circumstances they will end up in the Bill in their current form. Thirdly, if I do not get a reasonable answer from the Minister this evening or by letter before Report, they will certainly re-emerge then, and will probably contain a requirement that Ofcom continues to investigate, or that in some other way progress continues to be made.
	Amendment 285 concerns format shifting, which is an old chestnut. It is something that is widely done. It is pretty universally accepted that if you buy a CD, you can put it on your MP3 player; but it is none the less against copyright. If copyright owners tried to pursue this hard, the Government and public would react swiftly against them. None the less, there is a right there that remains unremunerated. Copyright owners have been pressing for this to be dealt with, as it is on the continent, by a levy on the kit used for format shifting.
	Another way of dealing with it might be that one could acquire a licence to format shift from the relevant licensing authority in whatever form the Government choose, so that rather than burdening ourselves with creating a new system of getting revenue via hardware, we use the existing system of licensing bodies to allow people to acquire a licence to format shift, much in the same way as people acquire a television licence. Format shifting is an unsettled area of copyright in which we should be making gentle progress.
	Amendments 286 and 287 concern the artist's right to remarket. Only a minority of music and other material is available on the net. Many artists find that substantial parts of their back catalogues are not for sale: they are locked up by people who have acquired the copyright interests and who do not find it worth their while marketing the work, so the artist gets no revenue from it. I think that there is a scheme-the noble Lord will tell me if I am wrong-that covers programmes provided by independent producers to ITV. After a certain period, if the programmes are no longer being actively used by ITV, they become open for remarketing by the companies that made them. If they successfully remarket something, they pay, I think, 50 per cent back to ITV. ITV acquires a revenue stream for which it has to make no effort at all. The original producer-who after all ought to be the concern of this Bill as much as the copyright owner-acquires a revenue stream where before there was no hope of income. Both sides benefit. This arrangement has been reached in this one small corner of the industry, although it could certainly be extended to music without any damage to anyone. The industry ought to be encouraged to make progress on this and, if we come to a proper reform of copyright, ought to be included. I want to hear from the Government what their position is on this and what progress they hope to be making in that direction.
	I shall not address Amendment 289. I shall not move it at the appropriate time.
	Amendment 290 relates to a practice which has grown up among some of the major rights holders. They look at licensing the material they have control of to a scheme and say, as some internet schemes do, "All you can eat for $15 a month", or whatever the right wording for that is in relation to music. Rather than requiring a payment from the scheme they are licensing, they say, "You can have access to our music for a proportion of your equity". They then say to the creators of this content, "No, you're not entitled to any of this. This is not income, this is something else. It is ours, not yours". This Bill should be concerned as much with the creators as with the owners of copyright. This injustice is likely to grow in the context of the way in which one can envisage the business of distribution of copyright materials on the net developing, and it ought to be ended because the interests of the creator ought to be preserved even if the rights have been disposed of in return for equity.
	Amendment 291 is an attempt to move the industry, and particularly the music industry, on a bit. It probably goes a bit far to discuss this evening.
	Amendment 292 returns us to something we have discussed peripherally this evening; namely, the way in which search engines and copyrights interact. That is amplified in Amendment 292BA, which looks at links. To deal with the latter amendment first, some major groups have asserted that to link to their material on the internet is to infringe their copyright. This is an extremely undesirable development and we ought to state clearly that we are against it and will take action against it. I return to my earlier comments on copyright-copyright is a compact between a Government and the creators of copyright content to enable the creation of that content by disadvantaging its citizens. I do not see that copyrighting or allowing the copyrighting of links advantages citizens in any way. There is no creation involved in that act. It merely starts to balkanise and destabilise the web and it should not be allowed.
	We should think carefully about what we want search engines to do and what we want the web to look like. It comes down to the question of whether we want to run the web British style or Chinese style.
	Are we interested in search engines being able to reach anything that people have put out on the web and that are not specifically blocked, or do we want to allow something that is more balkanised and where whole sections of the web are available only through subscription to a certain ISP or site? We ought to take the clear view that the breadth of knowledge on the web should be available to all, and that commercial interests on the web should be confined to relatively small corners of it and not allowed to take over vast swathes of it. In most cases, a search engine taking a small extract of copyright material-what is on a search engine is copyright material-should be regarded as fair usage and a proper part of the way in which the citizen and the copyright holder interact. I beg to move.

Lord Davies of Oldham: My Lords, I do not know whether to respond to the thoughtfulness of the noble Lord, Lord Lucas, in grouping together all his remaining amendments on the Marshalled List at this late stage of the day and speaking to them, or to his threats that the Government are in for very serious trouble on Report if my responses are not good enough. I will respond in a similarly constructive way. I am all too aware that he somewhat syncopated the quality and range of the arguments that he might have put in defence of his amendments, although, by the same token, the Government's replies will not be as extensive as they might have been, so I undertake here and now to write to him with a fuller response. I am well aware that there will be conspicuous gaps in my response to his arguments and to the issues that he raises, although I hope to be able to cover some of the more significant points of principle so that we clarify the position.
	Amendment 285 deals with the format-shifting question, to which the Government have given the most careful consideration both in the recent copyright strategy and in the second-stage consultation on the Gowers recommendations on copyright exceptions. We have concluded that a UK-only solution will not be able to deliver the kind of access and use that private individuals would like while at the same time respecting the needs of rights holders for appropriate remuneration, and that a solution that is suitable for the digital age can be delivered only in an EU-wide context. The noble Lord will appreciate that we have a great deal more work to do in this area, and I hope he will recognise that we cannot accept the amendment.
	Amendments 286 and 287 deal with artists' right to remarket. As stated in the recent copyright strategy, the Government plan to draw together a group to develop model contracts or contract clauses that strike a fair balance between the rights of creators and publishers to form a benchmark for good practice. We are already working with industry representatives to take this forward, and we recognise the importance of this point.
	I do not think that the noble Lord spoke to Amendment 289, which is the only amendment for which I have a specific answer that might have been regarded as satisfactory and all encompassing. He did, however, speak to Amendment 291, which would take away the control of the creator. We do not think that there is a compelling policy reason to do so in this case.
	Likewise, we are worried about Amendment 292. Interfering with the balance of current rights and exceptions would have far-reaching consequences for those who run web services and for rights holders and consumers. There is also a real danger of unintended consequences when legislating for particular technology-specific issues. We therefore do not think that it would be right to legislate further in this area without having examined fully whether a further exception is necessary, and without having determined the full consequences of these actions.
	I recognise that the noble Lord put forward an important argument in this area, and this is certainly one of the responses which I know he will say in a moment or two is somewhat less than satisfactory. I will certainly undertake to write to him with regard to that amendment, and to flesh out our arguments on the other amendments.
	Finally, on Amendment 292BA, we are not clear whether all of the activities within the scope of this amendment would infringe copyright in any event. In some cases, it would depend on the circumstances of a particular case. The amendments may legitimise some aspects of unlawful file-sharing and so would of course conflict with one of the aims of the Bill.
	The Government want-and the noble Lord did say how important it was for us to have a definition of what we wanted from the web-web users to continue to be able to use the web freely for legitimate uses, but we do not want to condone or to encourage copyright infringement. Those are the principles which underpin our approach to the web. Once again, I know that I am craving the noble Lord's indulgence with such a sparse response to some intensive arguments, which he mercifully at this late hour kept to a few well-chosen words. We will write to him on all those amendments and I know very well that if he is less than satisfied with the responses on that very mildly-presented point, we may hear more from him. We will certainly bear that in mind in the letters that we write to him. I hope that he will withdraw his amendment.

Lord Lucas: My Lords, there is certainly potential in the letter that the noble Lord will write to satisfy the questions that I have raised in these amendments. I look forward to reading it. He did not address Amendment 290. Given that it is a somewhat technical amendment, I will be satisfied with a letter on that subject too. I will be particularly interested in the detail on Amendments 286, 287, 290, and 292BA. Those are the ones where the noble Lord has excited my interest most in terms of what can possibly be conveyed through a letter. I look forward very much to receiving it. I beg leave to withdraw my amendment.

Lord Davies of Oldham: My Lords, I regret my omission of Amendment 290. That was a mistake on my part. I am not going to go into it in great detail now, but we do have very considerable sympathy for the intention behind this amendment. However, we are not sure that this is the way to achieve what we think we have in mind as a common aim. If that is an encouragement to the noble Lord, he will find the letter at least reasonably positive in that direction.
	Amendment 285 withdrawn.
	Amendments 286 to 292 not moved.
	Amendment 292A
	 Moved by Viscount Bridgeman
	292A: After Clause 42, insert the following new Clause-
	"Metadata
	(1) The Copyright, Designs and Patents Act 1988 is amended as follows.
	(2) In section 296ZG (electronic rights management information)-
	(a) after subsection (3) insert-
	"(3A) This section also applies where a person (F), knowingly and without authority, distributes, imports for distribution or communicates to the public or makes available to the public any device, product or component, or provides services which are designed or promoted to remove or alter electronic rights management information."
	(b) after subsection (4) insert-
	"(4A) A person D or E or F shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.""

Viscount Bridgeman: Amendments 292A and 292B are joint amendments in the names of the noble Lord, Lord Clement-Jones, and myself. They should logically be transposed. Amendment 292A expands the effectiveness of Amendment 296ZG in the Copyright, Designs and Patents Act 1988. It is where a person is knowingly associated with a program to separate metadata. I am advised by everyone in industry that electronic programs, which are designed to inhibit that, are a total waste of time. The only effective sanction is a penalty and that is set out in new subsection (2)(b). Metadata are of particular interest to the photographic industry. Earlier in the debate, we talked about making available orphan works, but the great advantage of having a really effective metadata regime is to inhibit the growth of orphan works. I beg to move.

Lord Clement-Jones: I rise very briefly-I see the look of horror on the Minister's face-to support the amendment of the noble Viscount, Lord Bridgeman. This group of amendments is important. In the photographic profession, metadata have become extremely important. The noble Viscount made the case very clearly for the sanction of a fine if these metadata are interfered with.
	Amendment 292B is also extremely important to cope with the activities of search engines. This is a completely new area. It has particular relevance to the actions of search engines and other operators who spider the internet; copies are gathered and often stored or processed by an automated process and no human mind would normally read rights management information, which is associated with or embedded in the protected subject matter. Machine-to-machine permissions and consents are becoming vital in the digital age but the present law is unclear about the circumstances in which the operator of the automated process will be required to abide by rights management information contained in or associated with copyright work. This amendment is designed to deal with that.

Lord Davies of Oldham: I am grateful to noble Lords for speaking to these amendments. On Amendment 292A, it is already the case that alteration of electronic rights management information, which may include metadata, is actionable in the same way as copyright infringement. We feel that the effect of this amendment would be to make it unlawful and potentially criminal to supply the systems used by rights holders to edit their own metadata. This is not something that the Government would wish to do. The current law is wise to focus on unauthorised tampering with metadata rather than the means of doing so.
	The Government are not sympathetic to Amendment 292A but we have considerable sympathy with Amendment 292B, which is to allow rights holders to control the terms of use of copyright works by, for example, web search providers. However, it is not clear that the amendment is needed: rights holders can already set these terms, and any infringement of their copyright is actionable in the courts. There are also risks of adverse consequences to legitimate web search and other valued services.
	On Amendment 292D, the Government recognise that many creators have concerns about this issue. Moral rights are an important part of copyright and should be respected wherever it is practical to do so. I am grateful to the noble Viscount for emphasising that matter today and giving us the opportunity to have a meeting in which we were able to discuss these issues with some degree of thoroughness, which is not the case this evening to the same extent.
	We recognise the concerns raised by the noble Viscount and will continue to look at this issue. I understand that officials have already carried out an informal information gathering exercise on this subject, and I am sure they will continue to explore the issues with parties from both sides of the debate. We do not underestimate the importance of this issue but we think it will be resolved better on an industry basis rather than in a formal amendment to the Bill. I hope the noble Viscount will be prepared to withdraw his amendment.

Lord Clement-Jones: I apologise to the Minister. I should have spoken to Amendment 292D. I thank him for his response to my non-introduction of that amendment.

Lord Davies of Oldham: I anticipated the issue because the noble Viscount, Lord Bridgeman, very kindly came to a meeting in which we discussed these issues intensively. In my mind, I had grouped all three amendments together. I now realise that there is another author, apart from the noble Viscount, Lord Bridgeman. I salute both authors and their copyright.

Lord Clement-Jones: If the Minister is not careful, I will come and bend his ear on the same subject.

Viscount Bridgeman: I am very grateful for the Minister's compliments. I shall read very carefully what he said in reply to Amendment 292A and consult the noble Lord, Lord Clement-Jones. In the mean time, I beg leave to withdraw the amendment.
	Amendment 292A withdrawn.
	Amendments 292B and 292BA not moved.
	Amendment 292C
	 Moved by Viscount Bridgeman
	292C: After Clause 42, insert the following new Clause-
	"Moral rights
	(1) The Copyright, Designs and Patents Act 1988 (the "1988 Act") is amended as follows.
	(2) For section 78 (requirement that right be asserted) substitute-
	"78 Moral rights
	(1) The rights conferred by this Chapter (moral rights) are-
	(a) exercisable without formality in unpublished works,
	(b) exercisable without formality in works made available to the public after this section comes into force.
	(2) There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement of this section, unless the rights conferred by this Chapter were asserted at the time."
	(3) In section 79 (exceptions to right)-
	(a) at the end of subsection (3) insert "except in the case of works created after section (Moral rights) of the Digital Economy Act 2010 comes into force",
	(b) omit subsection (5), and
	(c) omit subsection (6)(a).
	(4) In section 81 (exceptions to right)-
	(a) omit subsection (3), and
	(b) omit subsection (4)(b).
	(5) For section 205D (requirement that right be asserted) substitute-
	"205D Requirement that right be asserted
	(1) The right conferred by section 205C shall be exercisable without formality.
	(2) There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement date of this section, unless the rights conferred by Chapter IV (moral rights) were asserted at the time."
	(6) In section 205G (exceptions to right) omit subsection (2).

Viscount Bridgeman: If I heard the noble Lord, Lord Clement-Jones, right, I think that press photographers are going to be used as a trading counter. I should like to speak briefly about them now.
	It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified. Authors' rights have a particular problem in the world of journalism. Authors have to take responsibility for their work, which is an exceptionally important matter in the case of journalistic works. The requirement to assert the right is, as has become clear in the Government's Digital Britain consultation that led to the Bill, confusing and introduces unnecessary complexity. In many cases, a person wanting to know whether they are legally obliged to identify an author would need to track down the original invoice submitted by the author or performer to the publisher or broadcaster. It is unnecessary and should be removed in the interests of clarity and legal certainty.
	The exception to the right to be identified as the author of a journalistic work was introduced to the 1988 Act at the last minute and in the days of hot metal typesetting. Then, publishers perhaps had cause to fear that the slug of metal bearing the photo credit or article by-line would fall on the floor and be kicked under the compositor's stone. Current technology makes identification easy-in fact, in the best design cases, it is entirely automatic-and the proposal on orphan works makes it imperative.
	Lest newspaper editors should have cause to be worried about this constraining normal editing, the bar is set high enough by the requirement that the author shows that an alternation amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. I beg to move.

Lord Clement-Jones: I support the noble Viscount, Lord Bridgeman, in this amendment. Moral rights are currently one of the poor relations under UK copyright law. Many of the concerns about orphan works that we have talked about today would be cured if there was a proper right of attribution-a proper moral right-under UK law, particularly for magazines and newspapers, which are currently exempted. The noble Viscount made a superb case for the amendment.

Lord Davies of Oldham: My Lords, I am grateful to both noble Lords for concentrating on what we all recognise is an important and difficult issue. The current law represents a careful balance between creators and rights holders, setting out their respective economic and moral rights, but we recognise that many creators have concerns about this issue.
	Officials at the Intellectual Property Office have conducted an informal information-gathering exercise. The indications from this were that the removal of the requirement to assert the right to be identified as author is not at all a straightforward matter. Although creators, as is to be expected, are generally positive about such moves, commercial users and owners of copyrighted works have indicated that any such change may impose additional administrative burdens on them and that editorial freedom could be marginalised.
	It is clear that this issue is one of many relating to the copyright framework that generates conflicting and, as we all appreciate, strongly held views. I suspect that the Bill is not entirely the appropriate vehicle to resolve matters, but we are aware of the strong feelings that have been represented again this evening. I am asking officials to continue looking into this matter and I hope for the time being that the noble Viscount can withdraw his amendment. He has certainly stimulated the Government to look at this issue further. It is complex and we are not sure that we can resolve it within the Bill's framework. We will look at these matters before Report.

Viscount Bridgeman: I am grateful to the Minister and beg leave to withdraw the amendment.
	Amendment 292C withdrawn.
	Amendment 292D not moved.
	Schedule 2 : Licensing of copyright and performers' property rights
	Amendments 293 to 299 not moved.
	Amendments 299A to 299L
	 Moved by Lord Young of Norwood Green
	299A: Schedule 2, page 56, line 37, at end insert-
	"( ) A penalty imposed under sub-paragraph (2) must not be greater than £50,000."
	299B: Schedule 2, page 57, line 31, leave out "a right ceases to be an orphan right" and insert "an interest in a performer's property rights ceases to be included in an orphan rights register (see paragraph 1BA)"
	299C: Schedule 2, page 57, leave out lines 36 to 40
	299D: Schedule 2, page 58, line 4, after "recording" insert ", unless it is a recording made from or included in a broadcast"
	299E: Schedule 2, page 58, line 9, at end insert-
	"1BA (1) A right is an orphan right, for the purposes of an authorisation given or to be given to a person (an "authorised person") under paragraph 1A or 1B, if any interest in the performer's property rights concerned is entered in a register maintained for the purposes of this paragraph by that person (an "orphan rights register").
	(2) An authorisation in respect of an orphan right does not affect the need for any consent-
	(a) from the owner of an interest not entered in the authorised person's orphan rights register (except in the case of an authorisation under paragraph 1B that extends to other interests), or
	(b) from the owner of an interest that is entered in that register, if the authorisation does not apply to that interest.
	(3) An authorised person must not enter an interest in an orphan rights register unless the authorised person-
	(a) has complied with the requirements of sub-paragraph (8) in respect of that interest and has not found the owner of the interest, or
	(b) has reasonable grounds for believing that another person has complied with those requirements in respect of that interest and that the owner of that interest has not been found.
	(4) An entry in an orphan rights register relating to an interest in a performer's property rights must include the record kept in accordance with sub-paragraph (8)(c).
	(5) If an authorised person finds the owner of an interest entered in that authorised person's orphan rights register, the authorised person must remove the entry.
	(6) If in relation to an interest entered in an authorised person's orphan rights register, the authorised person-
	(a) is aware that the requirements of sub-paragraph (8) were not complied with, or
	(b) is aware of information that makes it no longer reasonable to rely on what was done in compliance with those requirements,
	the authorised person must comply as soon as possible with the requirements of sub-paragraph (8) or remove the entry.
	(7) A failure by an authorised person to comply with any of sub-paragraphs (3) to (6) in relation to an interest to which an authorisation applies-
	(a) does not affect the authorisation in relation to that interest, except so far as regulations may provide, but
	(b) is actionable as a breach of statutory duty owed to the owner of that interest.
	(8) The requirements of this sub-paragraph in respect of any interest in a performer's property rights are-
	(a) to carry out a reasonable search to find or, if necessary, to identify and find, the owner of the interest,
	(b) after the search, to publish notice of the proposal to enter the interest in an orphan rights register, in a way designed to bring the proposal to the attention of the owner of that interest, and
	(c) to keep a sufficient record of the steps taken under paragraphs (a) and (b) and of the results of those steps.
	(9) For the purposes of sub-paragraph (8)(a) the person carrying out the search must in particular-
	(a) make such use as is reasonable of sources of information, including sources within sub-paragraph (10), relating to the apparent country of origin of the recording concerned, and
	(b) have regard to any presumptions under section 105 that would apply in relation to the recording in any proceedings.
	(10) The sources referred to in sub-paragraph (9)(a) are-
	(a) licensing bodies;
	(b) public funding bodies;
	(c) trade unions and trade associations;
	(d) systems for identifying recordings of the type concerned;
	(e) published library catalogues and indexes;
	(f) public databases, including public records that may indicate successors in title.
	(11) For the purposes of sub-paragraph (9)(a) a recording's apparent country of origin is the country which the person carrying out the search reasonably believes is most likely to be-
	(a) the country of the recording's first publication, or
	(b) if the recording has not been published, the country with which its making is most closely connected.
	(12) Any guidance issued by the Secretary of State must be taken into account in deciding whether the requirements of sub-paragraph (8) have been complied with.
	(13) The Secretary of State may by regulations amend any of the preceding provisions of this paragraph."
	299F: Schedule 2, page 58, line 13, at end insert "(and section 116D accordingly applies as if references to Part 1 included references to this Part)."
	299G: Schedule 2, page 58, line 14, leave out "and 1B" and insert "to 1BA"
	299H: Schedule 2, page 58, leave out line 19
	299J: Schedule 2, page 58, line 21, at end insert-
	"( ) The power referred to in sub-paragraph (1)(a) to make consequential provision includes power to amend this Part."
	299K: Schedule 2, page 58, line 22, leave out "and 1B" and insert "to 1BA"
	299L: Schedule 2, page 58, line 27, leave out from beginning to "may" in line 28 and insert
	"(4) Sub-paragraph (5) applies to a statutory instrument containing any of the following-
	(a) the first regulations made under paragraph 1A;
	(b) the first regulations made under paragraph 1B;
	(c) regulations under paragraphs 1A to 1BA amending paragraph 1BA or another provision of this Part.
	(5) The statutory instrument"
	Amendments 299A to 299L agreed.
	Schedule 2, as amended, agreed.
	Clause 43 agreed.
	Clause 44 : Public lending right
	Amendment 300
	 Moved by Lord Clement-Jones
	300: Clause 44, page 48, line 18, at end insert-
	"(c) applies only to one loan to one reader at a time of each copy of the work held by the library concerned,"

Lord Clement-Jones: My Lords, it is with enormous pleasure that I rise at 10 minutes before 11 pm to move this final probing amendment in Committee.
	The Public Lending Right Act 1979 gives authors the legal right to receive payment for the free loan of their books by public libraries. The Copyright, Designs and Patents Act 1988 provides that any eligible works currently lent under the PLR scheme are lent without infringing copyright under the 1988 Act. Clause 44 of this Bill proposes to extend the 1979 Act to cover non-print book formats, meaning that e-books would now be included under the public lending right.
	Publishers strongly support the remuneration that PLR provides for authors and would like authors to continue to collect PLR money based on the model of one payment for one loan to one reader. If the proposal were enacted, rights holders' ability to licence the lending rights for these works to libraries would effectively be removed. E-book formats, unlike their physical counterparts, are highly conducive to unauthorised copying and onward exploitation. It is important, therefore, that there are sufficient safeguards in the primary legislation. One of these safeguards should be that the extension of PLR to digital formats is restricted to one loan to one reader of each copy of the work held by the library, as would be the case for a physical book. This probing amendment is designed to clarify the Government's intention in this regard.
	I believe that the Government have already expressed their commitment to this policy although it is not included in the Bill. While hard copy audiobooks or pre-loaded e-books can be lent in a meaningful sense of the word, libraries do not have the controls in place to protect loans of digital book files or enforce temporary access to books in digital formats which are downloaded for a short time but not retained. Without the inclusion of this proviso, multiple copies of an e-book could be made available for loan simultaneously when only one copy had been purchased. This would effectively result in free loans or free online access to authors' and publishers' content in an e-format and could result in heavy financial losses for creators, making investment in the burgeoning digital market unsustainable. I beg to move.

Lord Young of Norwood Green: My Lords, finally, unlike in Arthurian legend, we have reached our version of the holy grail-the final amendment. I agree that in order to protect the interests of rights holders it is vital that loans are limited in the way that this amendment suggests to ensure that libraries are not able to provide the public with unlimited access to an author's work. However, while the phrase "one copy" presents no immediate problems in respect of hard-format printed or audio works, it is not sufficient to cover all the means by which libraries may offer soft-copy electronic works to readers. In those circumstances, it may be that a library holds just one copy of a work, but has, directly or indirectly with the retailer, purchased permission to lend the work to a fixed number of people more than one at any one time.
	Crucially, therefore, it is not the number of copies of a work held by a library which should dictate the number of times that work can be loaned out at any one time, but the number of permissions to loan it out, which the library has purchased. It is the Government's intention that such limits are placed on a library's ability to make concurrent loans, but we do not think that the proposed amendment would satisfactorily achieve these aims in respect of the very media-e-books, et cetera-to which the noble Lord referred, which Clause 44 seeks to bring within the purview of the public lending rights scheme.
	We agree with the objective behind the amendment and intend to address this issue in secondary legislation. While the suggestion is correct in its intention, I trust that in the light of my explanation and assurance that the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. I very much hope that the holy grail we are talking about is not the Monty Python version. That is all I can say at the end of seven days in Committee. The Minister's reply will be of great interest to publishers. There were some very useful elements in it. However, perhaps the Minister has ended Committee stage of the Bill on the same note with which he started it; namely, that it will all be fine in the secondary legislation.
	The amount of secondary legislation that this Bill gives rise to will make the seven days in Committee appear like a fleabite in terms of parliamentary time. I shudder to think about how much secondary legislation will need to be debated through the affirmative process. I have not checked whether this particular secondary legislation under Clause 44 is by the affirmative process, but certainly there will be a great deal more. I hope that the secondary legislation turns out to be all right, after the endless consultation that will take place on almost every clause of this Bill. The Government are creating an enormous rod for their own back, but we will be watching the every move of the department in the process. I beg leave to withdraw the amendment.
	Amendment 300 withdrawn.
	Clause 44 agreed.
	Clauses 45 and 46 agreed.
	Schedule 3 agreed.
	Clauses 47 to 49 agreed.
	House resumed.
	Bill reported with amendments.

Terrorist Asset-Freezing (Temporary Provisions) Bill
	 — 
	First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.
	House adjourned at 10.59 pm.